Docket: T-415-13
Citation:
2015 FC 1298
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 20, 2015
Present: The Honourable Mr. Justice Gascon
BETWEEN:
|
COUNCIL OF THE
INNU OF EKUANITSHIT
|
and
|
SOCIÉTÉ DES
ENTREPRISES INNUES D'EKUANITSHIT S.E.P. (2009)
|
Applicants
|
and
|
MINISTER OF
FISHERIES AND OCEANS CANADA
|
and
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MINISTER OF
PUBLIC WORKS AND GOVERNMENT SERVICES
|
and
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HAMEL
CONSTRUCTION INC.
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The Council of the Innu of Ekuanitshit and the
Société des entreprises Innues d'Ekuanitshit s.e.p. (2009) (collectively, the
Innu of Ekuanitshit) presented an application for judicial review against decisions
made by the Minister of Fisheries and Oceans Canada (the MFO) and the Minister
of Public Works and Government Services (the MPWGS) (collectively, the federal
ministers) regarding the reconstruction of Mingan wharf in the Gulf of
St. Lawrence.
[2]
On September 2009, a fire completely destroyed
the wharf in place at the time in the village of Mingan, requiring its
reconstruction. In order to proceed with the construction, the MFO made the decision
to acquire the services to reconstruct the wharf through a public bid
solicitation initiated in November 2012 by the MPWGS. In February 2013, the
MPWGS awarded the contract to Hamel Construction Inc.
(Hamel). The reconstruction of the wharf was completed in January 2014, before the
spring 2014 fishing season.
[3]
In their original notice of application filed in
March 2013, the Innu of Ekuanitshit sought judicial review of the contract
awarded for the reconstruction of the wharf by the MPWGS on February 5,
2013 and to have it set aside. Following the amendment of their notice of
application in August 2013, the Innu of Ekuanitshit also challenged the
previous decision of the MFO and the MPWGS to acquire services to reconstruct
the wharf through a public bid solicitation and, alternatively, requested that
the tender notice published by the MPWGS on November 30, 2012, be set
aside.
[4]
The Innu of Ekuanitshit attacked these decisions
of the MFO and PWGSC by raising their unreasonableness and illegality. They
claimed that by determining who would reconstruct the Mingan wharf, the federal
ministers erred in submitting the contract to reconstruct a public bid
solicitation and, in the same breath, setting aside the application of a Canadian
Treasury Board Contracting Policy Notice entitled the Procurement Strategy
for Aboriginal Business (the PSAB). Indeed, in this entire bid solicitation
and contract award process, the Innu of Ekuanitshit alleged that the federal
ministers did not apply the PSAB to the project to reconstruct the Mingan wharf.
That was their main complaint against the decisions of the MFO and the MPWGS. Furthermore,
the Innu of Ekuanitshit argued that, in their dealings leading to the award of
the contract for the reconstruction of the wharf, the federal ministers had a
duty to consult with and accommodate them (in the sense that this duty has been
developed by the Supreme Court of Canada in Haida
Nation v. British Columbia (Minister of Forests),
2004 SCC 73 (Haida) and its descendants), and that they did not fulfill
this duty.
[5]
According to the Innu of Ekuanitshit, this
failure of the federal ministers to apply the PSAB to the project to reconstruct
the Mingan wharf and to consult with them in the process of awarding contracts is
sufficient to invalidate the decisions relating to the notice of bid
solicitation and the contract awards.
[6]
With respect to remedies, since
the Mingan wharf has now already been reconstructed and the contract for its
reconstruction is complete, the Innu of Ekuanitshit are no longer requesting
the setting aside of the contract awarded to Hamel in February 2013 or the decision
to initiate a public bid solicitation for it in November 2012. As their counsel
confirmed at the hearing before this Court, rather they seek to obtain
declarations. They are of two types. First, the Innu of Ekuanitshit request from
the Court a declaration that the reconstruction of Mingan wharf constituted a contract
to provide goods or services submitted to the PSAB; also, by proceeding with a public
bid solicitation outside the scope of the PSAB and by awarding the contract to reconstruct
Mingan wharf to Hamel, the MFO and the MPWGS awarded the contract illegally and
breached the PSAB. Second, the Innu of Ekuanitshit also requested a declaration
that the federal ministers have
not adequately fulfilled their duty to consult them on the elements of the project
to reconstruct the wharf and seek to accommodate them before initiating the
notice of bid solicitation and awarding the contract to Hamel. Finally, the
Innu of Ekuanitshit requested that the costs be incurred by the federal
ministers regardless of the issue of the case given the importance of
the issues and public interest in the legal resolution of the case.
[7]
On behalf of the federal
ministers, the Attorney General of Canada (the AGC) argued that the fundamental
purpose of this application is in fact the decision of the MFO and the MPWGS to
initiate a public bid solicitation for the wharf reconstruction and set aside the
PSAB. The AGC submitted that this decision must be reviewed on a standard of reasonableness
and that this standard was met in this case. Furthermore, the AGC claimed that the
challenge to this decision is late, that the Innu of Ekuanitshit do not have
the required interest to seek a remedy and that the proceedings have become
purely moot given the reconstruction of the wharf. Finally, the AGC argued that
the federal ministers had no duty to consult or accommodate the Innu of
Ekuanitshit in this case within
the meaning of Haida. Therefore, the AGC requested that the Court dismiss
the application, with costs.
[8]
Initiated in March 2013, this application for
judicial review today raises the following two questions:
- Did the federal ministers err in deciding not to apply the PSAB
and to proceed by public bid solicitation in the process leading to the
award of the contract to reconstruct the Mingan wharf to Hamel?
- Did the federal ministers have a duty (within the meaning of Haida)
to consult and accommodate the Innu of Ekuanitshit in the process leading
to the contract award to reconstruct the wharf?
[9]
For the reasons that follow,
the Court allows in part the application of the Innu of Ekuanitshit. First, the
Court is of the view that the different preliminary questions raised by the AGC
do not act as a bar to this application. Second, the Court finds that the decision
of the federal ministers to set aside the PSAB and proceed with the contract
award through a call for public tenders does not meet the standard of
reasonableness, as the MFO and the MPWGS had not analyzed the tests established
by the PSAB and did not have the evidence to conclude that the PSAB did not apply
to the contract. However, the Court is of the view that the federal ministers did
not, apart from the process provided by the PSAB, have a general duty to
consult and accommodate the Innu of Ekuanitshit in this
case, and that there was no violation in this regard in
the conduct of this case.
II.
Background
[10]
Before dealing with the issues, it is important to
establish the background of the application of the Innu of Ekuanitshit, particularly
the facts surrounding the reconstruction of the wharf, the exact purpose of the
remedy sought and the PSAB put in place by the federal government.
A.
The facts
[11]
Built by the Americans in 1942 (or in 1943 according
to Jean-Charles Piétacho, the chief of the Innu of Ekuanitshit), the Mingan
wharf is currently owned and supervised by the MFO. It is located on the north
shore of the Gulf of St Lawrence bordering land belonging to the federal
government. It is directly adjacent to the Ekuanitshit Aboriginal reserve and
the village of Mingan. Although all the routes that give access to the wharf cross
or run along the Ekuanitshit reserve, the wharf itself is not located on the reserve
or surrounded by it.
[12]
In September 2009, the wharf was destroyed by
arson. In a letter written to the MFO at the time on September 21, 2009,
Chief Piétacho stated that the fire was [translation]
“an enormous catastrophe for the region of Mingamie, for
which commercial fishing has an important place in the economy”. He described
the wharf as the “lifeblood of the economy” and
the most important infrastructure of the Ekuanitshit community and neighbouring
communities. A little later in the fall of 2009, the MFO declared the wharf
completely destroyed and had the remnants demolished.
[13]
In the fall of 2009, steps were taken by the MFO
to quickly build a temporary replacement wharf and to begin the process of rebuilding
a permanent wharf. Preliminary discussions then took place between the
representatives of the MFO and the Innu of Ekuanitshit.
[14]
In the month of October 2009, according to one
of the affiants of the federal ministers, Luc Boucher, the MFO reviewed the criteria
of the PSAB in anticipation of the reconstruction of the wharf and in
preparation of the work that had to be performed in the short term to construct
a temporary replacement wharf. The MFO decided to immediately construct floating
temporary wharfs so that they would be ready for the fishing season in April
2010. The contracts for the construction of temporary replacement wharfs were awarded
by public bid solicitation. The temporary structures would stay in place for
the fishing seasons 2010, 2011, 2012 and 2013.
[15]
The MFO officers also then began to develop a long-term
solution for the reconstruction of a permanent wharf, so as to meet the needs
of the commercial fishing industry in the region. The solution contemplated specifically
aims to meet the needs of the 13 commercial fishing vessels that, according to
the MFO’s data, regularly use the Mingan wharf.
[16]
In June 2010, the MFO gave its preliminary approval
of the project to reconstruct the Mingan fishing harbour. Then it was planned
that the funding for the project would come from the major capital budget of
the Small Craft Harbours (SCH), a national MFO program. In November 2010, the
MFO completed its comparative analysis of the various options available for a new
permanent wharf and then confirmed its decision to reconstruct the wharf in
Mingan. The other options considered by the MFO at the time included the relocation
of the vessels to other harbours of the north shore, the construction of a new harbour
in a neighbouring region and the installation of floating steel foundations.
[17]
In November 2011, the MFO made the decision to proceed
with the reconstruction of the permanent wharf by public bid solicitation. According
to the testimony of Mr. Boucher, the MFO then informed the Innu of Ekuanitshit.
[18]
In January and February 2012, discussions took
place between the MFO and the Innu of Ekuanitshit on the project to reconstruct
the wharf. Throughout 2012, the MFO also held several meetings with the Mingan
Harbour Authority in which the various representatives of the Innu of
Ekuanitshit participated and in which the MFO described the status of the project
to reconstruct the wharf. In his affidavit, Yves Bernier, one of the affiants of
the Innu of Ekuanitshit, indicated that the employees of the Société des Entreprises
Innues d'Ekuanitshit s.e.p. (2009) (the SEIE), a local Aboriginal economic
development corporation, participated on behalf of the community in several of
these meetings. The SEIE has a general contractor's license from the Régie du
bâtiment du Québec (the RBQ) and is 99% owned by the Société de gestion
Ekuanitshinnuat inc., an incorporated company of Quebec.
[19]
During these meetings, the representatives of
the MFO or the MPWGS did not raise the issue of the PSAB. The evidence also
shows that Mr. Boucher, the MFO employee responsible for the project to
reconstruct the wharf, did not consult the federal government’s directives on consulting
and accommodating Aboriginal peoples.
[20]
In June 2012, SNC-Lavalin Inc. [SNC] was retained
by the MPWGS, on behalf of the MFO, so as to analyze the environmental aspects
of the Mingan wharf reconstruction project, in accordance with the requirements
of the Canadian Environmental Assessment Act (2002), SC 2002, c 19, art
52 (the CEAA). The final version of the project’s environmental effects
evaluation report would be produced by SNC in March 2013.
[21]
In mid-October 2012, in the context of its study,
SNC contacted the Innu of Ekuanitshit to ask them some questions on their concerns
regarding the environmental effects of the reconstruction of Mingan wharf. In
the start of November 2012, Mr. Bernier then sent two letters in this regard to
the representative of SNC, setting out all of the grievances of the Innu of
Ekuanitshit relating to the project.
[22]
During a meeting held on October 22, 2012, the
representatives of the Innu of Ekuanitshit asked the MFO regarding the possible
participation of the Innu in the reconstruction project and the possibility
that the contract to reconstruct the wharf be awarded by mutual agreement to
the Innu. The MFO answered that awarding the “contract”
by mutual agreement had not been considered, stated that the MFO intended to launch
a public bid solicitation, informed the Innu of Ekuanitshit that this bid
solicitation would be open to all and invited them to participate in the
process.
[23]
On November 13, 2012, the MFO approved the
application for the final approval of the project to replace the Mingan wharf (at
a cost of $7.4 million). The MPWGS published a notice of bid solicitation on November
30. In the meantime, between November 13 and the publication of the notice
of bid solicitation on November 30, Yves Rochette, MPWGS procurement specialist,
wondered whether the PSAB applies to the project. Mr. Rochette verified with the
MFO and confirmed that the PSAB did not apply.
[24]
On December 4, 2012, Mr. Bernier of the SEIE and
the Innu of Ekuanitshit were informed of the bid solicitation. Then they asked
again if the option of a contract by mutual agreement could be considered by the
federal ministers. The MFO answered that it launched a public bid solicitation that
aimed to award the contract to the lowest bidder and reiterated that the possibility
of entering into a contract by mutual agreement was not one of the avenues considered
by the Department.
[25]
At the close of the bid solicitation on December 18,
2012, five compliant bids were received by the MPWGS. In January 2013, the
MPWGS awarded the reconstruction contract to Hamel for $6.8 million and the
award notice was published on February 5, 2013. A year later, in January 2014,
Hamel completed the reconstruction of the permanent Mingan wharf.
[26]
The Innu of Ekuanitshit submitted their notice
of application for judicial review before the Court on March 7, 2013.
B.
The application des Innu of Ekuanitshit
[27]
Since more than two years have elapsed since the
filing of the original notice of application of the Innu of Ekuanitshit and
that the reconstruction of the Mingan wharf was completed in the meantime, the
nature of the remedies sought by the Innu of Ekuanitshit has changed.
[28]
In their notice of amended application of August
2013, the Innu of Ekuanitshit sought the following different remedies:
[translation]
1. A declaration
that the ministers of Fisheries and Oceans Canada and Public Works and
Government Services Canada …:
a. did not adequately fulfil their
duty to consult the Innu of Ekuanitshit on the components of the project to
reconstruct the Mingan wharf that might adversely affect their Aboriginal
rights; and
b. did not seek, in a spirit of
conciliation, the accommodation measures required by the honour of the Crown;
2. A declaration that for the purposes of
the Treasury Board’s Contracting Policy Notices (CPM) 1996-2 and 1997-6 and of
the Procurement Strategy for Aboriginal Business (PSAB) that these notices
created:
a. the reconstruction of Mingan wharf
constitutes construction subject to the federal procurement process, the cost
of which exceeds $5,000;
b. the Mingan wharf is part of a
region composed of the Indian reserve of Ekuanitshit (Mingan) and where Aboriginal
people form more than 80% of the population; or
c. the
Innu of Ekuanitshit, alone or with the other members of the Innu Nation, form a
group of people receiving goods and services constituted by the reconstruction
of Mingan wharf and this group is composed of 100% Aboriginal people;
d. the reconstruction of Mingan wharf
constitutes goods or services for which “Aboriginal populations are the primary recipients” and that are subject to the PSAB.
3. A declaration that the Société des
entreprises Innues d’Ekuanitshit s.e.p. (2009) is an “Aboriginal business” within the meaning of the CPM 1996-2 and 1997-6 for the purposes of
the PSAB that these notices were created;
Cancellation of the acts
4. The cancellation of the contract award by
the Minister of Public Works and Government Services under reference number
PW-$QCM-008-15052 because of its unreasonableness and illegality;
5. Alternatively
a. the cancellation of the notice of
the bid solicitation entitled “Reconstruction
of Mingan wharf”, published on November 30,
2012 under reference number PW-$QCM-005-15052;
b. the extension of time under subs. 18.1(2)
of the Federal Courts Act so as to allow applicants to challenge this act,
if applicable, and
c. an order under section 302 of
the Federal Courts Rules to allow this application to bear on more than
one decision, if applicable;
Referral as directed
6. The referral of procurement established
by the reconstruction of Mingan wharf back to the Minister of Fisheries and
Oceans and the Minister of Public Works and Government Services, so that they
may
a. consult, in accordance with s. 35 of
the Constitution Act, 1982, the Innu of Ekuanitshit on the components of
the project that may adversely affect their rights and seek accommodation
measures as required by the honour of the Crown;
b. determine whether for this project
“the nature of the work is such that it would not be
in the public interest to solicit bids” within the meaning of the Government
Contracts Regulations, SOR/87/402, para. 6(c);
c. determine whether Aboriginal
suppliers are “capable of responding to the needs”
for this project and, as required, they launch a bid solicitation “with qualified Aboriginal suppliers in accordance with the
purpose of the PSAB” under the CPM 1996-2, para. 4 to 9, and the
CPM 1997-6, para. 2.2.1;
d. alternatively, prepare a bid
solicitation to “request Aboriginal business sub-contracting plans” as
permitted under the CPM 1997-6, para. 3.3.1.;
Prohibition
7. A writ of prohibition against the Minister
of Public Works and Government Services and the Minister of Fisheries and
Oceans to prevent them from doing any act that would allow the execution by
Hamel Construction Inc. of the contract awarded under reference number
PW-$QCM-008-15052.
[29]
In their memorandum of fact and law submitted in
May 2014, however, the order required by the Innu of Ekuanitshit was more
limited and required that this Court, in addition to any costs:
[translation]
A. A declaration that the federal ministers have
not adequately fulfilled their duty to consult and accommodate the Innu of
Ekuanitshit before making the decision established by the award of the contract
to reconstruct the Mingan wharf or, alternatively, the decision established by
the notice of bid solicitation relating to the same project;
B. A declaration that the reconstruction of
Mingan wharf constituted goods or services subject to the PSAB and that the
MPWGS awarded the contract illegally owing to its violation of the PSAB;
C. Alternatively, if the contract award and
its submission to a bid solicitation constituted more than one decision, an order
under section 302 to enable this application to relate to more than one decision
and the extension of time under para 18.1(2) of the FCA so as to challenge
the bid solicitation.
[30]
Then, during the hearing before this Court, counsel
for the Innu of Ekuanitshit specified that the only remedies now sought were
indeed declaratory in nature. The Innu of Ekuanitishit no longer require the cancellation
of the contract award or the notice of bid solicitation launched for the reconstruction
of Mingan wharf, the referral of the procurement to the MFO and the MPWGS, or
the issue of a writ of prohibition against the federal ministers.
[31]
That said, the dispute still relates to the two decisions
relating to the reconstruction of Mingan wharf: first, the decision made in February 2013
by the MPWGS awarding to Hamel the contract requested by the MFO and, second, the
decision made in November 2012 to make a bid solicitation to award this
contract. The Innu of Ekuanitshit consider these two decisions as inseparable. In
both cases, according to the Innu of Ekuanitshit, they contain no allusions to the
PSAB (which was not applied to them) or to the duty to consult and accommodate and
it is these violations by the federal ministers that are the basis of their application
for judicial review and the declaratory relief that they seek.
C.
The PSAB
[32]
The PSAB was launched in 1996 by the federal
government to help Aboriginal businesses bid on federal contracts (i.e. contracts
with the federal government) and thus win more contracts with federal
departments and agencies. It is an initiative of the Government of Canada that
is administered by the Minister of Aboriginal Affairs and Northern Development Canada
(the AANDC), but all federal departments and agencies are encouraged to participate
in it.
[33]
The PSAB is part of the Treasury Board
Contracting Policies, which govern the awarding of contracts by the federal
government and promote Aboriginal businesses in Canada. The Treasury Board
Contracting Policy is established under subsection 7(1) of the Financial
Administration Act, RSC 1985, c F-11 (the FAA). Therefore PSAB falls under
the policies that govern the procurement of goods, services and construction by
the contracting authorities responsible for contracting for the Government of
Canada.
[34]
Four policies were issued by the Treasury Board to
create and govern the PSAB and to limit its application: the Aboriginal
Business Procurement Policy and Incentives - Contracting Policy Notice 1996-2 (the
CPM 1996-2), adopted in March 1996; the Aboriginal Business Procurement
Policy Performance Objectives - (Contracting Policy Notice 1996-6) (the CPM
1996-6), adopted in September 1996; the Aboriginal Business Procurement
Policy - Contracting Policy Notice 1996-10; and the Procurement Policy
for Aboriginal Business: Guidelines for Buyers/Government Officials (Contracting
Policy Notice 1997-6) (the CPM 1997-6), adopted in August 1977. The
PSAB applies to contracts awarded by the federal government as of April 1,
1996.
[35]
The CPM 1996-2 of March 1996 lays the
foundations of the PSAB. It sets out in article 1 that with the PSAB, the
government approved a “program designed to increase
Aboriginal business participation in supplying government procurement
requirements”. It added to article 2 that the government has accepted
that “all departments and agencies shall initiate or
participate in supplier development activities aimed specifically at Aboriginal
businesses”. Article 5 provides the following so that the PSAB
qualifies as “mandatory setasides”:
5. The new policy is broad in scope. The
first phase, which becomes effective on April 1, 1996, requires all
Contracting Authorities, where a procurement is valued in excess of $5,000,
and for which Aboriginal populations are the primary recipients, to restrict
this procurement to qualified Aboriginal suppliers where operational
requirements, best value, prudence and probity, and sound contracting
management can be assured. Contracts valued at less than $5,000 may also be
set aside for qualified Aboriginal suppliers if it is practical to do so.
|
5. La nouvelle politique a une vaste
portée. À partir du 1er avril 1996, date à laquelle entrera en vigueur la
première phase du programme, lorsque la valeur d'une commande dépasse 5 000
dollars et que les biens ou services sont destinés principalement à des
populations autochtones, toutes les autorités contractantes devront inviter à
soumissionner uniquement des fournisseurs autochtones qualifiés, dans la
mesure où sont satisfaits les exigences opérationnelles, et les critères
relatifs à la meilleure valeur, à la prudence, à la probité et à la saine
gestion des marchés. Les marchés d'une valeur inférieure à 5 000 dollars
peuvent également être réservés aux fournisseurs autochtones pour des raisons
pratiques.
|
…
|
[…]
|
Definitions
|
Définitions
|
…
|
[…]
|
“Aboriginal Business”
|
“Entreprise autochtone”
|
An Aboriginal business is an enterprise
that is:
|
Une entreprise autochtone est :
|
a. a sole proprietorship, limited company,
cooperative, partnership, or notforprofit organization
|
a) une entreprise à propriétaire unique,
une société à responsabilité limitée, une coopérative, une société en nom
collectif ou une entité sans but lucratif :
|
- in which Aboriginal persons have
majority ownership and control meaning at least 51 percent, and
|
- dans laquelle des autochtones
détiennent le contrôle et une participation majoritaire, c'est à dire au
moins 51 p. 100 des actions, et
|
- in which, in the case of a business
enterprise with six or more fulltime employees, at least 33 percent of
the fulltime employees are Aboriginal persons,
|
- dans laquelle, s'il s'agit d'une
entreprise commerciale de six employés à temps plein ou plus, au moins
33 p. 100 des employés à temps plein sont des autochtones;
|
Or
|
Ou
|
a. a joint venture or consortium in which an
Aboriginal business or Aboriginal businesses as defined in (a) have at least
51 percent ownership and control, and
|
a) une coentreprise ou un
consortium dans lequel une ou plusieurs entreprises autochtones définies au
paragraphe a) ci-dessus détiennent le contrôle et au moins 51 p. 100 des
actions, et
|
b. which certifies in bid documentation
that it meets the above eligibility criteria, agrees to comply with required
Aboriginal content in the performance of the contract, and agrees to furnish required
proof and comply with eligibility auditing provisions.
|
b) qui, dans les
documents de soumission, atteste répondre aux critères d'admissibilité
ci-dessus, consent à respecter les critères relatifs à la teneur autochtone
dans l'exécution du marché et qui accepte de fournir les preuves requises et
de se conformer aux dispositions sur la vérification d'admissibilité.
|
…
|
[…]
|
“Aboriginal Population”
|
“Population autochtone”
|
Aboriginal Population means:
|
Population autochtone désigne:
|
a. an area, or community in which Aboriginal people make up at least
80 percent of the population;
|
a) une région ou une collectivité où les autochtones constituent au
moins 80 p. 100 de la population;
|
b. a group of people for whom the
procurement is aimed in which Aboriginal people make up at least 80 percent
of the group.
|
b) un groupe de personnes destinataire
d'un approvisionnement qui est formé d'autochtones dans une proportion d'au
moins 80 p. 100.
|
[36]
Therefore, under the terms of the CPM 1996-2, the
PSAB is imperative when the conditions for a contract mandatorily set aside for
Aboriginal people are fulfilled: it prescribes that the contracting authorities
must invite only qualified Aboriginal suppliers to bid when the value of an
procurement exceeds $5,000, where the goods or services for which “Aboriginal populations are the primary recipients”, and
that the operational requirements, best value, prudence and probity, and sound
contracting management can be assured. Article 9 of the CPM 1996-2 also
provides that, for other procurement projects, Aboriginal businesses should be
encouraged to act as subcontractors.
[37]
Therefore, the PSAB appears as a mandatory program
for all departments and the CPM 1996-2 also establishes that the government expects
that its departments preach by example in entering into contracts with qualified
Aboriginal businesses. Under the terms of the CPM 1996-2, a contracting
authority subject to the PSAB must thereby determine whether a procurement
project that it is considering must be set aside for Aboriginal businesses as
part of the PSAB.
[38]
The CPM 1996-6 specifies other requirements to
be entitled to the PSAB. This second directive requires, in fact, that the
Aboriginal bidder must be an Aboriginal business that meets the control
requirements by Aboriginal people. This notice also provides subcontracting and
certification requirements. Therefore, if a department determines that the PSAB
applies, it is thus mandatory to determine whether Aboriginal suppliers are
able to meet the procurement needs in question. The CPM 1996-6 reiterates that the
PSAB is designed to increase Aboriginal business participation in government
procurement through mandatory and selective set asides and supplier development
activities.
[39]
The CPM 1997-6 provides some guidelines and recalls
that the federal government is determined to increase its contracts with Aboriginal
businesses. Echoing the CPM 1996-2, it describes the mandatory setasides as those
for which goods or services are “destined primarily for
Aboriginal populations as defined in [the CPM 1996-2]” (para 2.6.1). The
CPM 1997-6 also added, under incentives for Aboriginal suppliers, that subcontracting
is “of further benefit to Aboriginal business” and
that all departments and agencies awarding contracts are “encouraged to request Aboriginal business sub-contracting
plans” (para 3.3.1).
[40]
The CPM 1997-6 also indicates at para 4.6.1, that
“[a]ll of the sole sourcing techniques may be employed
for requirements identified as set-aside”, in which case a single
supplier may be solicited. Finally, it adds, at para 8.1.1, It is the
responsibility of the contracting authority to “decide
if a procurement opportunity is to be set aside under (the PSAB), including
initial determination of a mandatory requirement”.
[41]
Regarding the four Treasury Board Policies, the
MPWGS also published a “Supply Manual” which includes
the supply policy of the MPWGS and the references to the applicable
legislation, regulations, and government and departmental policies. This manual
includes section 9.40 relating to the PSAB, which also reproduced the
different attributes of the PSAB. The Manual specifies at paragraph 9.40.1, with
respect to mandatory setasides, that it is “mandatory
to set aside a procurement under PSAB if an Aboriginal population is the
primary recipient or end user of the goods or services being procured”, in
addition to other conditions described in the Manual.
[42]
Therefore, the Court observed that there is
consistency in the different policy statements and directives issued by the Treasury
Board and the MPWGS regarding the PSAB. The following key elements arise:
- The purpose of the PSAB is to increase Aboriginal business participation in supplying federal
government procurement requirements;
- The contracting authority must establish whether, for a
given procurement, a mandatory setaside exists within the meaning of the
PSAB;
- A mandatory setaside is one where a procurement is valued in
excess of $5,000, where goods or services for which “Aboriginal populations are the primary recipients”,
and where operational requirements, best value, prudence and probity, and
sound contracting management can be assured;
- An Aboriginal population is either “an area, or community in which Aboriginal people make
up at least 80 percent of the population” or “a group of people for whom the procurement is aimed in
which Aboriginal people make up at least 80 percent of the group”;
- If the conditions for a mandatory setaside exist, the contracting
authority must only solicit Aboriginal suppliers qualified to bid;
- The contracting authority is also prompted to consider and
encourage Aboriginal business sub-contracting;
- The sole sourcing techniques may be employed for
requirements identified as set aside for Aboriginal businesses.
[43]
Under the application of the PSAB, businesses
considered for a federal contract are qualified Aboriginal bidders. However, the
Government Contracts Regulations, SOR/87-402 (the Regulations) nevertheless
continues to apply, which means, for example, that contracting normally
initiates a bid solicitation, that all qualified bidders have equal access to contracts
offered and that the usual bid solicitation methods of the federal government
still govern mandatory setasides under the PSAB. However, the Regulations
provides, among other things that some procurements must be of such a nature that
a bid solicitation would not serve the public interest in the circumstances
(para 6(c)).
III.
Preliminary matters
[44]
The AGC and the Innu of Ekuanitshit raise
various preliminary matters that are important to deal with before addressing
the issues. They relate to the delay in submitting the application for judicial
review, the interest of the Innu of Ekuanitshit, the mootness of the remedies sought
and the strike-out of a portion of the affidavit of Mr. Boucher.
A.
Is the application late?
[45]
The AGC argued that, since the original notice
of application of the Innu of Ekuanitshit concerned only the MPWGS’s contract
award to reconstruct the wharf but in reality, the remedy relates to the
earlier MFO decision to initiate a bid solicitation, the dispute of this first decision
is late and must be rejected. Indeed, the original notice of application contained
no allegation of misconduct or illegality in the tendering process. According
to the AGC, the Innu of Ekuanitshit filed their amended notice of application several
months after the submission of their initial notice and after all the parties had
filed their affidavits and despite the fact that they were aware of the MFO’s
decision to proceed by bid solicitation since at least November 2012. Furthermore,
according to the AGC, the Court should not grant the Innu of Ekuanitshit an extension
of time under section 18.1 of the Federal Courts Act, RSC 1985, c F-7 (the
FCA) since the respondents have not met the requirements prescribed by case law
to obtain such an extension of time (Canada (Attorney General) v Larkman,
2012 FCA 204 (Larkman) at para 61; Canada (Attorney General) v Lacey,
2008 FCA 242 (Lacey) at para 2).
[46]
The Court does not share the AGC’s position in
this regard.
[47]
The purpose of this dispute and the application
for judicial review filed by the Innu of Ekuanitshit is the alleged failure of
the federal ministers to apply the PSAB and comply with their duty to consult and
accommodate in the process that led to the decisions to initiate a bid
solicitation for the project to reconstruct the wharf and award the contract to
Hamel. The Innu of Ekuanitshit argued that, in this context, the contract award
and its submission to a tendering process are an inseparable pair of decisions made
by the federal ministers. The Court agrees with the Innu of Ekuanitshit on this
point.
[48]
The decisions not to apply the PSAB and to
initiate a public bid solicitation that ended in awarding the contract to reconstruct
the wharf to Hamel can and must be considered as being part of the same decision
for the purposes of this application for judicial review. Indeed, they are
different sides of the same coin: when the MFO determined that it was not
appropriate to apply the PSAB, it thus inevitably decided to proceed by public bid
solicitation; conversely, by deciding to publish a bid solicitation and award
the contract to Hamel, it is clear that the MFO and the MPWGS have, by necessary
implication, excluded the PSAB application. Moreover, although the Court had to
consider that the decision under review is truly the bid solicitation requested
by the MFO and initiated by the MPWGS, the fact remains that the decision on
the bid solicitation becomes final only once the contract is reached and
awarded to a bidder. Furthermore, the Regulations provide at article 5 that
the reaching of a contract by the federal government is directly linked to the
initiation of a bid solicitation. Therefore, it was right for the Innu of
Ekuanitshit to wait for the outcome of the process and the contract award before
filing their notice of application; otherwise, the decision of the MFO and the MPWGS
to initiate the bid solicitation would not have been a final decision (MiningWatch
Canada v Canada (Minister of Fisheries and Oceans), 2007 FC 955 at para
148).
[49]
Furthermore, although it was considered that
more than one decision is at issue in this file, the Court is of the view that
this succession of decisions by the MFO and the MPWGS is part of a single conduct
that may, in the circumstances, be the subject of a single order within the
meaning of section 302 of the Federal Courts Rules, SOR/98-106. Indeed, the
MFO’s decision and that of the MPWGS are a single series of acts and they are “so closely linked as to be properly considered together”.
(Shotclose v Stoney First Nation, 2011 FC 750 (Shotclose) at para
64; Canadian Assn. of the Deaf v Canada, 2006 FC 971 at para 66).
[50]
In addition, the Court noted Huu-Ay-Aht First
Nation v British Columbia (Minister of Forests), 2005 BCSC 697 at para 104,
cited by the Innu of Ekuanitshit, which states that the concept of “decisions” must not be strictly applied when there is
a statutory authorization for a governmental initiative that directly affects
the constitutional rights of the First Nations. This matter concerned the application
of the duty to consult and accommodate the Crown (within the meaning of Haida),
and the principle of broad and liberal interpretation that it sets out for the decisions
that affect Aboriginal rights has since been largely followed by the courts. It
supports an approach that the decisions at issue in this matter are seen as an
inseparable whole for the purposes of the application for judicial review lodged
by the Innu of Ekuanitshit.
[51]
Finally, in any case, subsection 18.1(2) of
the FCA confers on the Court discretion to award an extension of time imparted
to submit an application for judicial review. Therefore, it is sufficient that
the conditions established by Larkman and Lacey are met, that the
applicant demonstrated a constant intention to pursue his application, that the
application contemplated reflects some merit and raises defendable grounds for review,
that the granting of an extension of time will not cause harm to the respondent
and that a reasonable explanation exists to justify the delay. The Court is of
the view that these conditions are met in the circumstances and that, if
required, it will be appropriate to exercise its discretion in granting the
extension of time to allow the Innu of Ekuanitshit to dispute the notice of bid
solicitation published on November 30, 2012 by the MPWGS.
[52]
Indeed, the sources of this dispute, on one side,
are the decision of the MFO and the MPWGS to set aside the PSAB and initiate a bid
solicitation for the reconstruction of Mingan wharf, which led to a contract
awarded to Hamel and, on another side, the failure of federal ministers to honour
their duty to consult and accommodate throughout the process. The Court is
satisfied, with respect to the evidence on file, that the Innu of Ekuanitshit have
always had an ongoing intention to pursue their application for judicial review
of these decisions, and that their application reflects some merit and a strong
foundation. In addition, since the application no longer seeks to cancel Hamel’s
reconstruction contract or the prohibition of the work to reconstruct Mingan
wharf, the Court considers that granting an extension of time does not cause harm
to the federal ministers. Finally, the Innu of Ekuanitshit offered a reasonable
explanation for the delay in submitting their application given the notice of bid
solicitation, considering the common thread connecting the series of acts by the
federal ministers resulting in awarding the contract to reconstruct the wharf. In
addition, the Court considered that granting an extension of time is in the interest
of justice (Larkman at para 62). The Court is of the view that the criteria
of Larkman and Lacey to obtain an extension of time the deadline
under subsection 18.1 of the FCA are met.
[53]
For all these reasons, the Court found that the
application of the Innu of Ekuanitshit is not late.
B.
Do the applicants have the required interest?
[54]
The AGC also argue that the Innu of Ekuanitshit do
not have the required interest to challenge the decision of the federal
ministers initiate a bid solicitation and award the contract to Hamel, since
they are not “directly affected by the matter in
respect of which relief is sought” as required in section 18.1 of the
FCA (Irving Shipbuilding Inc. v Canada (Attorney General), 2009 FCA
116). According to the AGC, the Innu of Ekuanitshit never sought the application
of the PSAB and requested only awarding them a contract by mutual agreement. Moreover,
after the initiation of the bid solicitation, the Innu of Ekuanitshit did not
file their bid to attempt to obtain the contract to reconstruct the wharf, although
other businesses succeeded in doing so with a very short notice period. Finally,
the AGC submitted that the Innu of Ekuanitshit did not show that they had the ability
to present an offer in accordance with the project and even less to reconstruct
the Mingan wharf for a cost and within a reasonable time. On the contrary, according
to the AGC, the available evidence shows that the SEIE did not have the required
qualities to complete the reconstruction of the wharf, specializing only in the
field of industrial construction related to hydro-electric projects, having no
employees in Quebec and admitting in cross-examination that it wanted to
undertake this project essentially as an educational experience ([translation] “like
teaching someone to walk”, Mr. Bernier stated). The AGC added that the
Innu of Ekuanitshit had also not shown that the SEIE is a qualified Aboriginal
business within the meaning of the PSAB.
[55]
The Court does not agree with the AGC’s arguments
and is satisfied that, for the following reasons, the Innu of Ekuanitshit are
directly affected by the subject of the application and have a required sufficient
interest to continue this judicial review.
[56]
The Court recalls that the essence of the dispute
at the source of this application for judicial review is the alleged failure of
the federal ministers to apply the PSAB and comply with their duty to consult
and accommodate the Aboriginal people in the process of awarding the contract
to reconstruct the wharf to Hamel. In the view of the Innu of Ekuanitshit, that
is what vitiates the decision of the federal ministers to proceed by bid
solicitation to award the contract. It seems clear that both the potential
application of the PSAB and the question of the duty to consult and accommodate
in this provision directly affect the Innu of Ekuanitshit, since they would
benefit directly on two fronts. Furthermore, although it is not necessarily certain
that the SEIE would have obtained the contract to reconstruct the wharf even
following a bid solicitation set aside for Aboriginal businesses, the Court is
nevertheless of the view that it can reasonably be inferred that the SEIE allegedly
had better chances in the context of the PSAB and that she was directly affected
by the federal ministers’ decision on the subject. Finally, although it is true
that the Innu of Ekuanitshit had not provided the evidence that the SEIE is an “Aboriginal business” within the meaning of the PSAB, the
Court noted that in his affidavit, Mr. Bernier noted that he took steps to enter
the SEIE in the Aboriginal Business Directory of the Government of Canada and
that to his knowledge, it meets all the criteria to be entered. Moreover, this
indicates that the company could have been qualified as an “Aboriginal business” under the PSAB since the eligibility
criteria for the Directory correspond closely to those of the PSAB. The Court also
observed that the SEIE has a licence from the RBQ and noted that, again,
according to Mr. Bernier’s testimony in his affidavit, the SEIE could have
completed the project to reconstruct the wharf alone or by bringing together
all the necessary sub-contractors.
[57]
Furthermore, the
Court also agrees with the argument of the Innu of Ekuanitshit that, in any
event, they have a “public interest” in presenting an application for judicial review of
the federal ministers’ decision to award the contract to reconstruct the wharf and
hold the bid solicitation on the ground that the MFO and the MPWGS allegedly
had not respected their duty to consult and accommodate and had neglected to apply
the PSAB. When a party raises a public interest, it is up to it to prove
that it has such interest. To establish it, the application
must convince the Court, on a balance of the evidence, that it meets the conditions of
the public interest criterion, as they were developed by the Supreme Court of
Canada in Canada (Attorney General) v Downtown Eastside Sex Workers United
Against Violence Society, 2012 SCC 45 (Downtown Eastside) at para 37.
[58]
These criteria require that the application shows (1) that
a serious justiciable issue is raised; (2) that there is a real stake or a
genuine interest in it and (3) whether, in all the circumstances, the proposed suit
is a reasonable and effective way to bring the issue before the courts. By
considering this third condition, the court must ask itself whether the action contemplated is an efficient use of judicial resources, if issues
are suitable for judicial determination in an adversarial setting and whether permitting
the proposed action to go forward will serve the purpose of upholding the
principle of legality (Downtown Eastside at
para 50). The Supreme Court also suggested several questions to be
considered in this analysis. They include, among other things, knowing whether
the applicant has the capacity to sue, if the case transcends the interests of
the parties that are the most directly affected by the legislative provisions
or by the impugned measures, whether there are realistic alternative means
which would favour a more efficient and effective use of judicial resources and
would present a context more suitable for adversarial determination and, finally,
whether the potential impact of the proceedings on the rights of others who are
equally or more directly affected should be taken into account (Downtown
Eastside at para 51). The factors listed must not be considered to be “items on a checklist or as technical requirements”, but
rather applied in a flexible and purposive manner to
be weighed cumulatively, not individually, and in light of their purposes (Downtown
Eastside at para 36).
[59]
Considering the criteria and issues raised by the
Innu of Ekuanitshit with respect to the application of the PSAB and the duty to
consult on the project to reconstruct the Mingan wharf, the Court is satisfied
that the Innu of Ekuanitshit also have the public interest required to initiate
this application for judicial review.
[60]
For all these reasons, the Court rejects the AGC’s
claims that the Innu of Ekuanitshit would not have had sufficient interest in
this file.
C.
Is the application moot?
[61]
Finally, the AGC argued that the Court should decline
to hear this application for judicial review because of its mootness. Indeed, Mingan
wharf is now rebuilt and, since the Innu of Ekuanitshit did not request its demolition,
the AGC argued that the issues are now purely moot and without remedy (Elkayam
v Canada (Attorney General), 2004 FC 908 at paras 11-12; Borowski v
Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski) at p
353).
[62]
The Court does not agree and is satisfied that the
application of the Innu of Ekuanitshit and the declaratory relief sought cannot
be considered to be purely moot. The original application was clearly not since
it sought to cancel the contract awarded to Hamel, in addition to the declarations
for the PSAB application and the duty to consult and accommodate. Of course, the
Innu of Ekuanitshit are now no longer seeking the cancellation of the contract
awarded to Hamel or the solicitation notice as the reconstruction of Mingan
wharf has been completed since the notice of application was filed. However, the
application raises more important questions that the Court has the discretion to
consider, such as the manner in which the PSAB application must be considered
by the MFO and the MPWGS and the existence and scope of the Crown’s duty to
consult and accommodate the Innu of Ekuanitshit in the circumstances.
[63]
The Innu of Ekuanitshit rely on the Supreme
Court decision in Manitoba Metis Federation Inc v Canada (Attorney General),
2013 SCC 14 (Manitoba Metis). This decision established that the courts
may make declarations “whether or not any consequential
relief is available” and that “[i]n some cases,
declaratory relief may be the only way to give effect to the honour of the Crown”
(Manitoba Metis at para 143). As the Supreme Court stated in this matter,
a declaration is a limited remedy.
[64]
Similarly, Borowski teaches that, even in
the absence of live controversy, the Court may still decide to exercise its
discretion to consider a moot question if the circumstances justify it. This is
the case if there is an adversarial context where the parties still have an interest
in the outcome of the dispute. In this case, the Innu of Ekuanitshit argued
that the basis of their application relates to the application of the PSAB and
the scope of the federal government’ duty to consult Aboriginal peoples. These
are important issues that would otherwise tend “to
evade review” (Doucet-Boudreau v Nova Scotia (Minister of Education),
2003 SCC 62 (Doucet-Boudreau) at para 20).
[65]
As the hearing before this Court demonstrated, these
questions are not abstract and may be subject to an adversarial context. In the
circumstances, the Court is of the view that it should review these questions and
make a declaration if the evidence justifies it, which would “will assist the parties to this action and others in similar
circumstances, in their ongoing relationships” (Doucet-Boudreau at
paras 19 and 22). It is recognized that the
Court has the power to issue declarations even if they are not for the purpose
of correcting a specific decision of a federal tribunal. In Solosky v
The Queen, [1980] 1 S.C.R. 821 (Solosky) at page 830, the Supreme Court
indeed recognized that the declaration is “remedy
neither constrained by form nor bounded by substantive content, which avails
persons sharing a legal relationship, in respect of which a 'real issue'
concerning the relative interests of each has been raised and falls to be
determined”. The Court
has a broad discretionary power in relation to granting declaratory relief or not (Western Canada Wilderness Committee v
Canada (Minister of Fisheries and Oceans), 2014 FC 148 at para 65).
[66]
In this case, the Court is satisfied that issues
raised by the Innu of Ekuanitshit are real and not merely moot, that they have
an identifiable interest in the declaratory relief and that the federal
ministers have a real interest in opposing and that remedy will have a utility (Mohawks
of the Bay of Quinte v Canada (Minister of Indian Affairs and Northern
Development), 2013 FC 669 at paras 62-64). In
this case, a declaratory order would have had some concrete effect in clarifying
the scope of the PSAB and the duty to consult and their respective applications.
It is in the interest of the two parties to clarify these issues. Finally, the Court observes that, in Borowski at p 353, the
Supreme Court stated that, despite the principle that a court may decline to
decide a case which raises merely a hypothetical or abstract question, court
may decide to exercise its discretion not to apply it.
[67]
In the circumstances, the Court finds and concludes,
in exercising its discretion, that the application of the Innu of Ekuanitshit cannot
be characterized as purely moot and deserves consideration.
D.
Should the Court strike part of Mr. Boucher’s
affidavit?
[68]
The Innu of Ekuanitshit argued that part of the
affidavit of the MFO’s representative, Mr. Boucher, (i.e. paragraph 65 and
Exhibit LB-41) should be struck because it contains elements that were not
before the MFO when the decision to set aside the PSAB and to proceed by bid
solicitation was made by the federal ministers (Mayne Pharma (Canada) Inc. v
Aventis Pharma Inc., 2005 FCA 50). Indeed, it is well established that only
the evidence submitted before a federal board, commission or other tribunal before
it makes its decision may generally be considered by the Court conducting a judicial
review of this decision. Therefore, an affidavit may be declared inadmissible
when it contains facts that have not been submitted into evidence before the original
decision-maker.
[69]
Paragraph 65 and Exhibit LB-41 of Mr.
Boucher’s affidavit refers to the statistics of the use of Mingan wharf from
2008 to 2011, in terms of the number of Aboriginal and non-Aboriginal vessels, landings,
quantity and catch values. The Exhibit consists of five pages, including a first
page that summarizes the information and four others that provide raw data on
the use of the wharf for each year from 2008 to 2011. The AGC admitted that the
first page was prepared for the purposes of the dispute and was certainly not
before the MFO at the time of considering the PSAB and deciding to award the contract
to reconstruct the wharf by bid solicitation. However, the AGC argued that this
page is simply a mathematical computation of the pages that follow, which adds
no evidence and aims only to make the data easier to digest and understand. The
other pages are statistical reports produced annually by the MFO and that
already existed, at least at the MFO, when the decision was made to initiate a public
bid solicitation for the reconstruction of Mingan wharf in November 2012.
[70]
The Court does not share the opinion of the Innu
of Ekuanitshit on this point and considers that paragraph 65 and Exhibit
LB-41 of Mr. Boucher’s affidavit may be admitted into evidence and do not have
to be struck.
[71]
It is indeed correct that the general rule is
that no new evidence may be given during an application for judicial review. However,
some exceptions exist and enable the Court to consider evidence that was
allegedly not presented before the decision-maker. That is particularly the case
when newly-submitted exhibits or information are general information likely to assist
the Court, or even when documents or information are those that “could arguably have been before, or at least within the
knowledge of” the decision-maker (Ochapowace First Nation v Canada (Attorney
General), 2007 FC 920 at paras 9 and 14). In Connolly v Canada (Attorney
General), 2014 FCA 294 at para 7, the Federal Court of Appeal, quoting Justice
Stratas in Assn. of Universities and Colleges of Canada v Canadian Copyright
Licensing Agency (Access Copyright), 2012 FCA 22 (AUCC), described
these exceptions as likely to “facilitate … the role of
the judicial review court without offending the role of the administrative
decision-maker” (AUCC at para 20). The exceptions include in
particular an affidavit that provides evidence that puts in context the impugned
decision or to explain the process followed.
[72]
In this case, the Court is satisfied that the statistical
reports from 2008 to 2011 that compose Exhibit LB-41 already existed, at least
at the MFO, when the decision to initiate a public bid solicitation for the reconstruction
of Mingan wharf was made in November 2012 and that they were produced prior to the
decision of the MFO in this respect. Therefore, they are documents and information
that were or could have well been in the possession of the MFO at the time of
his decision and that the MFO and that the MPWGS could have understood or have
had knowledge of. Furthermore, no one disputes its relevance in the determination
of the application of the PSAB to the project to reconstruct the wharf. Moreover,
even assuming that the content of paragraph 65 and Exhibit LB-41 were not
part of the MFO file, the Court is of the view that they can be considered for
the purposes of this application for judicial review under the exception relating
to the information explaining the decision-making process.
[73]
Moreover, the Court added that a decision like
that giving rise to this judicial review, i.e. the decision of the federal
ministers to set aside the PSAB, initiate a public bid solicitation and award
the contract for the services of reconstructing the wharf, is not a judicial or
quasi-judicial decision made by a body required to have a similar case to that
of an administrative tribunal or a court of record. Therefore, what constitutes
the documents that were before such a decision-maker or could have been considered
by it when it made the impugned decision is harder to determine.
[74]
The Court also noted that paragraph 65 and Exhibit
LB-41 were the subject of numerous questions in the cross-examination of Mr.
Boucher and that the Innu of Ekuanitshit had even submitted a supplementary
affidavit of Guy Vigneault to reply in a detailed manner. The content of this paragraph
and Exhibit LB-41 are incidentally a central element of this dispute relating
to the application of the PSAB to the award of the contract to reconstruct the
wharf. Therefore, the Innu of Ekuanitshit are quite badly placed to request
that it be struck, as they replied extensively in their submissions.
[75]
For all these reasons, the Court finds that it is
not appropriate to exercise its discretion and strike paragraph 65 and Exhibit
LB-41 of Mr. Boucher’s affidavit. Having said that, it does not mean that the
Court confers on them any probative value with respect to the substantive issue
that is the subject of the application for judicial review (and that will be discussed
below). The Court will give this evidence the appropriate weight in the
analysis of the decision to set aside the PSAB, but it is not appropriate to grant
the motion to strike of the Innu of Ekuanitshit.
IV.
Analysis
A.
Did the federal ministers err in deciding not to
apply the PSAB and to proceed by public bid solicitation in the process leading
to awarding the contract to reconstruct the Mingan wharf to Hamel?
[76]
First, the Innu of Ekuanitshit seek a statement
to the effect that the MFO and the MPWGS erred in deciding not to apply the
PSAB and by initiating a public bid solicitation to award the contract to
reconstruct the wharf to Hamel. It is on this element that their counsel focused
during the hearing before this Court. According to the Innu of Ekuanitshit, the
reconstruction of Mingan wharf constituted goods or services subject to the
PSAB and the MPWGS awarded the contract illegally because of its breach of the
PSAB. Indeed, according to the Innu of Ekuanitshit, it was the failure to apply
the PSAB to the contract award process for the reconstruction of Mingan wharf that
vitiates and renders unreasonable or illegal the decision of the MFO and the MPWGS
to proceed by public bid solicitation and award the contract to Hamel. Neither the
MFO nor the MPWGS noted the possibility of the application of the PSAB to the
project.
[77]
The Court observed that, in its notice of
application, the Innu of Ekuanitshit requested relatively specific conclusions
regarding the PSAB. In particular, they sought a declaration to the effect that
(1) the reconstruction of Mingan wharf constitutes construction subject to the
federal procurement process, the cost of which exceeds $5,000; (2) the Mingan
wharf is part of an area composed of the Indian reserve of Ekuanitshit (Mingan)
where Aboriginal peoples form more than 80% of the population, where the Innu
of Ekuanitshit form a group of persons who are recipients of goods and services
established by the reconstruction of Mingan wharf and 100% composed of Aboriginal
peoples; and (3) therefore, the reconstruction of Mingan wharf is goods or
services for which “Aboriginal populations are the
primary recipients” and are subject to the PSAB. In addition, they
requested a declaration that the SEIE is an “Aboriginal
business” within the meaning of the CPM 1996-2 and 1997-6 and for the purposes
of the PSAB that these notices created.
[78]
In their memorandum of fact and law, while the
remedy sought with respect to the PSAB was much more modest, limited to a declaration
that the reconstruction of Mingan wharf constituted goods or services subject
to the PSAB and that the MPWGS awarded the contract illegally because of its breach
of the PSAB. Then, during the hearing before this Court and in light of the
limits of the evidence available, counsel for the Innu of Ekuanitshit recognized
that, as part of this application for judicial review, the Court would find it
difficult to substitute itself for the federal ministers and issue specific declaratory
orders on the application of the PSAB to the contract to reconstruct the wharf even
if it found that the federal ministers’ decision to set aside the PSAB was
erroneous in this case.
(1)
What is the applicable standard of review?
[79]
The first question to determine is the standard
of review applicable to this first part of the application for judicial review.
[80]
The Innu of Ekuanitshit argued that the applicable
standard of review is that of correctness, relying in particular on Assh v
Canada (Attorney General), 2006 FCA 358 at para 40. In their view, this
standard applies to “questions of law that are of
central importance to the legal system as a whole and that are outside the
adjudicator's expertise” of the decision-maker (Canada (Canadian
Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 18).
Moreover, according to the Innu, that is the case for the interpretation and application
of the PSAB. The Innu of Ekuanitshit argued that the interpretation of the scope
of the Treasury Board directives such as the CPM 1996-2 and 1997-6 and the PSAB
is a question of law and interpretation of the laws regarding which neither the
MFO nor the MPWGS have a greater expertise than the Court. Therefore, their
decision on the application of the PSAB should not be owed deference and be reviewed
on a standard of correctness (David Suzuki Foundation v Canada (Minister of
Fisheries and Oceans), 2012 FCA 40 at paras 101-105; Sheldon
Inwentash and Lynn Factor Charitable Foundation v Canada, 2012 FCA 136 at paras 18-23).
[81]
The Court does not agree and is rather of the
view that the standard of reasonableness must
apply in this case.
[82]
The Innu of Ekuanitshit argued that the federal
ministers erred in their decision to proceed by bid solicitation and to award
the contract to reconstruct the wharf to Hamel because of their failure to apply
the PSAB to the facts at issue. In this
context, the interpretation and application of the PSAB by the federal
ministers constitute a question of mixed fact and law that requires a factual
analysis and the consideration of numerous factors. Indeed, the PSAB itself alludes
to the complexity of this decision, noting that a bid solicitation limited to Aboriginal
peoples may take place only where the goods for which “Aboriginal
populations are the primary recipients” and only “where operational requirements, best value, prudence and
probity, and sound contracting management can be assured” (the CPM
1996-2, art. 5). Therefore, the application of the PSAB in this case depends on
a largely factual appreciation including the review of the objectives of the reconstruction
project and the intended users of the wharf. This type of decision requires
relying on the standard of reasonableness.
[83]
Furthermore, although this is not a home statute
of the MFO or the MPWGS, the PSAB is part of the current application directives
with which the federal ministers must regularly deal in contract awards by the
federal government; in this regard, it is appropriate to give them some deference
in their interpretation. Moreover, the evidence indicates that the MFO has extensive
experience in the application of the PSAB, in particular committing to allocate
5% of its procurement budget for contracts involving Aboriginal peoples and entering
into contracts with Aboriginal businesses of nearly $28 million in 2009 and $11
million in 2010.
[84]
In Simon v Canada (Attorney General),
2013 FC 1117 (Simon), the Court found that a Treasury Board Policy was an “exercise
of [its] legal authority” with
respect to the financial management of funds and imposed a “constraint on the Minister’s authority to spend such funds” (Simon at paras 35 and 38). In this matter, as there is no legislation expressly governing income assistance
for First Nations, the Court had determined that the Treasury Board directive and
policy in this respect expresses “Parliament’s purpose or goal in providing funds for income
assistance on reserves” and therefore constitutes “a kind of legislative decision-making that binds the Minister's
discretion over the expenditure of funds authorized for that purpose” (Simon at para 38). The Court had therefore
decided that the appropriate standard with respect to such a decision is that of reasonableness since, as indicated in Dunsmuir v New Brunswick, 2008 SCC 9 (Dunsmuir) at para 54, “where the tribunal is interpreting its own statute or
statutes closely related to its function with which it will have particular
familiarity then the standard is normally that of reasonableness” (Simon at para 37). The Federal Court of Appeal confirmed everything in Canada
(Attorney General) v Simon, 2015 FCA 18 at para 59, citing in particular the
Supreme Court in Agraira v Canada (Public Safety
and Emergency Preparedness), 2013 SCC 36 at
paras 45-47.
[85]
Similar to the situation in Simon, the Court is of the view that the standard
of reasonableness must apply to the first issue, because the Court must consider
how the MFO and the MPWGS have interpreted and applied the criteria applicable
for the PSAB, a directive regarding which they have an undeniable expertise.
[86]
The AGC also argued that in any case, the PSAB is
only an administrative directive that cannot be the subject of judicial
punishment within an application for judicial review before this Court. According
to the AGC, the Government of Canada encourages its departments to adopt the
PSAB but it does not require them to do so. Furthermore, even if it were “mandatory,” the PSAB is an internal policy that is
not legally binding. Although a federal board,
commission or other tribunal may be required to consider the administrative
directives issued by a department or the government, such internal policies
are not legally binding and constitute at best interpretive tools (Spencer v
Canada (Attorney General), 2010 FC 33 (Spencer) at para 27; Leahy
v Canada (Minister of Citizenship and Immigration), 2012 FCA 227 (Leahy)
at para 92).
[87]
However, several decisions have established that
a directive may have force of law and be subject to measures as part of a judicial
review proceeding. Moreover,
in Endicott v Canada (Treasury Board), 2005 FC 253 (Endicott) at
para 11, the Court found that the issue of whether the Treasury Board directives
create rights recognized by the law that may be subject to judicial review if
an authority has not complied to them depends on the intention and context in
which the directive was published. And in Simon, the Court found that the Treasury Board Policy exercises its legal authority with
respect to the financial management of funds (in application of the FAA) and imposed
a limit on the Minister’s authority to spend such funds. Moreover, the Federal
Court of Appeal determined that the Minister did not have the discretion to apply
the Treasury Board policies and directives in this file and that the documents
expressed the objective or intention of Parliament in this case.
[88]
Therefore, when a plan prescribed by a directive
is very precise, leaves no discretion and confers a benefit, it may be considered
to be legally binding (Endicott at para 11; Kagimbi v Canada (Attorney General), 2014 FC 400 (Kagimbi) at
paras 38-39). In this case, the Treasury Board directives and the PSAB establish
a series of conditions and standards that departments must consider in awarding
their procurement contracts and lay down a rule stipulating that contracts
become “mandatory setasides” for Aboriginal
businesses when the conditions of the PSAB are fulfilled.
[89]
The Federal Court of Appeal also indicated that
the failure to apply a directive may have the effect of making the decision of
a decision-maker unreasonable (Tobin v Canada (Attorney General), 2009
FCA 254 at para 52). In Leahy (at
para 92), the Court had also stated that although the Treasury Board Policies are
sometimes not binding, they may be used to help in interpreting a decision. Finally,
in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, the Supreme Court had stated that the “guidelines are a useful indicator of what constitutes a
reasonable interpretation of the power conferred” on a decision-maker and
that “the fact that this decision was contrary to their
directives is of great help in assessing whether the decision was an unreasonable
exercise of the H & C power” (at para 72).
[90]
In this case, the Innu of Ekuanitshit were not
seeking a declaration that the PSAB is invalid or illegal but rather claim that
the failure of the MFO and the MPWGS to apply it to the project to reconstruct
the Mingan wharf and their interpretation of its components are erroneous. Therefore,
the Court is of the view that the standard of reasonableness applies in this
case and may be used to determine whether the interpretation and the application
of the PSAB by the federal ministers in the circumstances may be maintained.
[91]
When the standard of reasonableness applies, the
Court must show deference to the decision-maker if its determination falls
within the “the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir at
para 47). As stated by the Supreme Court in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 (Khosa) at para 59, “[t]here might be more than one reasonable outcome. However,
as long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome.” The application
of the criterion of the reasonableness also encompasses a quality requirement
that applies to those reasons and to the outcome of the decision-making process
(Montréal (City) v Montreal Port Authority, 2012 SCC 14 (Montréal)
at para 37-38).
[92]
Reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process. The reasons for a decision are considered reasonable “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes” (Dunsmuir at
para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 (Newfoundland Nurses) at para 16). In this context, the Court must show deference to the tribunal’s
decision and cannot substitute its own reasons. However, it may, if it find it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome (Newfoundland Nurses at para 15).
(2)
Was the decision to set aside the PSAB reasonable?
[93]
The Innu of Ekuanitshit admitted that they did
not invoke of their own motion the issue of the PSAB application during their
discussions with the MFO and the MPWGS. However, they claimed that it was up to
the federal ministers to do it since under the CPM 1996-2 and 1997-6 of the Treasury
Board, the contracting authorities are required to establish and determine
whether the PSAB applies to a procurement.
[94]
For the reasons that follow, the Court is of the
view that in light of the evidence on the record, the decision of the contracting
authorities to set aside the PSAB in this case and therefore proceeded with the
contract award by public bid solicitation was not reasonable for two reasons. First,
it appears that the federal ministers had not adequately considered the PSAB and
its components in their decision to proceed by bid solicitation to award the contract
to reconstruct the wharf. Second, even assuming that the federal ministers would
have effectively considered the PSAB, data and information that they had on
hand could not allow them to reasonably conclude that the PSAB did not apply in
this case.
(a)
The requirements of the PSAB
[95]
It is important to recall what the PSAB sets out
regarding contracts that are mandatory to set aside for Aboriginal businesses. First,
it is up to the contracting authority to determine whether the PSAB applies to
this procurement. It is mandatory to do so. The PSAB then declared that, so
that contracts can be mandatorily set aside for Aboriginal businesses, “Aboriginal populations [must be] the primary recipients”
of goods or services. An Aboriginal population is itself defined by the PSAB as
meaning (a) an area, or community in which Aboriginal people make up at least
80 percent of the population, or (b) a group of people for whom the procurement
is aimed in which Aboriginal people make up at least 80 percent of the group. Therefore,
it is in view of these elements, clearly set out in the CPM 1996-2 and 1997-6 of
the Treasury Board, that the federal ministers should determine whether the
PSAB applied to the contract to reconstruct Mingan wharf. These elements are at
the very heart of what defines the scope and application of the PSAB. Incidentally, the Court noted that they are systematically
repeated in the various policy statements and directives of the Treasury Board and
the MPWGS.
[96]
There are no precedents
that deal with the interpretation and application of the PSAB and specifically the
meaning and scope of the terms of “Aboriginal
populations are the primary recipients” (and
the resulting criterion of 80%) contained in the PSAB.
[97]
The Innu of Ekuanitshit argued that under the terms
of the Treasury Board Policies, the application of the PSAB in fact requires
the contracting authority to consider two separate requirements. First, it must
determine for which population are “the primary
recipients” of the goods or services at issue in the procurement. The
word “primary” is not defined in the PSAB or the
Treasury Board documents. However, according to the Innu, its plain and
ordinary meaning would mean 50% or more. Second, the contracting authority must
further determine whether the primary recipients are an “Aboriginal population” within the meaning of the PSAB,
i.e. an area or a community composed of at least 80% Aboriginal peoples or a
population that is the recipient of the procurement should be formed of at
least 80% Aboriginal peoples. This second criterion provides two alternatives that
both refer to a notion of people and individuals, rather than goods or supplies.
First, there is a geographic criterion related to the area or community or,
second, a criterion related more directly to people (i.e. a group of people receiving
the procurement). It is sufficient to meet either one with respect to the concept
of “Aboriginal population”.
[98]
The AGC submitted that the expression “Aboriginal populations are the primary recipients” must
rather be read as a whole and at the outset appeals the reaching of the
threshold of 80%. Therefore, according to the AGC, a good or service must be aimed
at a population composed of 80% Aboriginal peoples so that it may fall within the
cut of mandatory setasides under the PSAB.
[99]
The Court considered that the approach used by the
AGC is not a reasonable interpretation of the PSAB for two reasons. First, it discarded
the word “primary”. This interpretation would
mean for all intents and purposes that the word “primary”
used in the documents and directives of the Treasury Board and the MPWGS would
be useless and should be ignored. If the intention had indeed been to limit the
mandatory setasides of the procurements “that serve a
primarily Aboriginal population (i.e., at least 80 per cent)”, the Treasury
Board directives allegedly did not use “primary”
in their wording and expressly stated it. Indeed, the approach suggested by the
AGC means that “primary” should, to all intents
and purposes, be considered to be equivalent to the concept of at least 80% of
the content in the definition of “Aboriginal population”.
The Court does not agree. That is not what the CPM 1996-2 and 1997‑6 say.
[100] Second, the Court recalls that the objective of the PSAB is to favour
and develop the participation of Aboriginal businesses in the federal
government’s procurement process and increase the award of contracts to Aboriginal
businesses. A liberal and generous approach to the scope and application of the
PSAB must prevail, in harmony with this intent. In this regard, the Court noted
the reference made by the Innu of Ekuanitshit in the leading case of the Supreme
Court in Mitchell v Peguis Indian Band, [1990] 2 S.C.R. 85, at p 99, where
the Court established that the laws and treaties to which Indians are subjected
must receive a broad and liberal interpretation and that any ambiguity must be
in favour of the Aboriginal peoples to remedy their historical disadvantages in
Canada. Moreover, an interpretation of the PSAB that would ignore the
requirement “the primary recipients” and would rely
on a single criterion establishing the threshold of 80% Aboriginal peoples would
limit the scope of the PSAB, to the detriment of Aboriginal businesses. Such an
interpretation is not consistent with the generous approach that must guide the
application of the PSAB.
[101] Therefore, the Court is of the view that the PSAB requires that contracting
authorities determine whether the two components of the definition contained in
the PSAB are met to decide whether they are in the presence of a mandatory
setaside for Aboriginal businesses. They must first identify who the
procurement “serve[s] primarily” and then determine
whether these recipients form an “Aboriginal population”
as defined in the CPM 1996-2. According to the Court, that is the only reasonable
interpretation of the terms used in the PSAB synchronized with both the Treasury
Board documents and the underlying intention of the government. All the words
used in the Treasury Board Policies must have a meaning and the federal
ministers thus, in their appreciation of the application of the PSAB to the reconstruction
of Mingan wharf, had to consider for whom the goods or services at issue were “the primary recipients” and whether these recipients
were an “Aboriginal population” within the
meaning of the PSAB.
[102] The Court observed that the AANDC, which is responsible for the administration
of the PSAB, still seems not to make a clear distinction between the concepts of
“the primary recipients” and “Aboriginal population” in the popularization of the
PSAB. Indeed, in its document entitled “PSAB: Procurement
Strategy for Aboriginal Business – overview of the program”, the AANDC speaks
of mandatory setasides for Aboriginal businesses as being those whose goods,
services or construction “that serve a primarily
Aboriginal population”. This document also described the contracts set
aside for Aboriginal businesses under the PSAB as “contracts
that serve a primarily Aboriginal population (i.e., at least 80 per cent)”.
During the hearing before the Court, counsel for the Innu of Ekuanitshit thus
recognized that the dual dimension of “the primary
recipients” and “Aboriginal populations” were
not clear from this internal AANDC document.
[103] However, the Court noted that the dual requirement set out by the
PSAB is not masked in all the documents on the record resulting from the AANDC.
Indeed, in a presentation of the AANDC on the PSAB and in a final report of March
2007 submitted to the AANDC on the summative evaluation of the PSAB (both
submitted by the applicants), the mandatory setasides are indeed described as “destined primarily for Aboriginal populations” as defined
in the PSAB, and adopt the language of the PSAB. In these circumstances, the
Court gives little weight to the internal AANDC document, which does not even correctly
quote the terminology used by the Treasury Board in its directives on the PSAB.
[104] That said, the Court does not need, to decide in this file, to determine
what specific interpretation must prevail to limit the exact scope of each of
the components “primary recipients” and “Aboriginal populations” used in the PSAB. Indeed, it
is clear that it is not even a question that the federal ministers had
considered in their decision. It is sufficient for the Court to note, so as to make
a finding of the unreasonableness of the decision in this case, that the
federal ministers did not seek to determine whether these two criteria expressly
described in the Treasury Board directives were met in this case and they did
not have available the data and information required to establish that the goods
and services aimed at by the contract for the reconstruction of Mingan wharf were
not that for which “Aboriginal populations are the
primary recipients”.
(b)
The analysis done of the PSAB for the contract
to reconstruct the wharf
[105] How did the federal ministers actually verify whether the PSAB applied
to the contract to reconstruct the wharf?
[106] First, let us consider the MFO. It is clear from the evidence, and
in particular from the cross-examination of Mr. Boucher, that it was in the
fall of 2009 that the MFO actually considered the PSAB. However, it was then
with respect to the award of the contracts for the replacement floating wharfs and
not the contract for the permanent wharf that was to be eventually reconstructed.
Indeed, its examination of the PSAB in 2009, the MFO conducted it only in the context
of construction for the replacement floating wharfs and when the MFO was
looking at the contracts for these temporary structures. Mr. Boucher admitted
it in cross-examination. At that time, the MFO in no way considered the contract
for the reconstruction of the permanent wharf that led to the bid solicitation and
the contract award to Hamel.
[107] Furthermore, there is no evidence indicating that between the fall
of 2009 and the decision to award the contract by bid solicitation in November
2012, the MFO had reconsidered the application of the PSAB to the
reconstruction of the permanent wharf in Mingan and reconsidered the issue. Indeed,
counsel for the AGC argued that the federal ministers did not need to do so
because the analysis had already been done in 2009 and had simply been upheld.
The affiant of the MFO, Mr. Boucher, admitted that his department had already
made up its mind with respect to the Aboriginal use of Mingan wharf when the
decision on the public bid solicitation was made for the reconstruction
contract, because it had already come to a conclusion in this matter in 2009
relating to the replacement floating wharfs.
[108] The AGC argued that various internal documents that had preceded the
decision to initiate the bid solicitation were available to the MFO and were
used by the federal decision-maker. After analyzing the evidence, the Court noted
that this was not the case. Indeed, there is no evidence that the MFO had
properly considered the PSAB in the decision leading to the tendering process for
the reconstruction of Mingan wharf. Both in the preliminary approval application
for the project of June 2010 and in the final approval document sent to the
assistant deputy minister of the MFO in November 2012 (and which contained the motivations
of the decision-maker for the final approval of the project to reconstruct the
wharf), there was no note that the PSAB was purportedly seen by the MFO at any
stage of the process.
[109] The establishment of the temporary replacement floating wharfs and
the reconstruction of the new permanent wharf are two events and two separate
construction contracts. No analysis of the PSAB was done by the MFO for the project
to reconstruct the wharf, and to simply import the analysis done in the context
of another contract is not, in the Court’s view, a decision that can be considered
reasonable.
[110] Moreover, this also means that, since the decision to set aside the
PSAB was actually made in 2009 and was simply renewed without any analysis for the
reconstruction of the permanent wharf, the statistical data relating to the years
2009, 2010 and 2011 (and to which Mr. Boucher refers in his affidavit) cannot
have been considered by the MFO in its decision that allow it to set aside the
PSAB with respect to awarding the contracts for the replacement floating wharfs.
Indeed, this data produced by the MFO, even if it is presumed that they were in
the hands of the MFO and would have been looked at for the purposes of the procurement,
did not exist when the decision was made in 2009.
[111] Also, although Mr. Boucher stated that the MFO had concluded in the
fall of 2009 that it was setting aside the PSAB, the Court also noted that the
explanations in the file in support of this decision are extremely limited. Indeed,
the MFO’s decision in 2009 that the PSAB did not apply in the construction of
the replacement floating wharfs did not have merit and relied on a very succinct
analysis of the PSAB. In fact, Mr. Boucher is only referring to a single exchange
of e‑mails dated October 1, 2009 (Exhibit LB-40), to describe its alleged
analysis of the PSAB. There is no other reference in the evidence. Moreover, this
e-mail gives a rather cursory explanation, in barely a few lines, of an exchange
on what is the [translation] “Aboriginal procurement strategy” according to the MFO.
A representative of the MFO specifies that the contracts set aside in an Aboriginal
business concern contracts “serve a primarily
Aboriginal population”, without more details or elaboration.
[112] The Court is not persuaded that such evidence is sufficient to make reasonable
the conclusion that the PSAB did not apply to the replacement floating wharfs. Indeed,
not only is the consideration given by the MFO to the PSAB extremely cursory, but
in wanting to oversimplify what the PSAB meant, the MFO in fact incorrectly described
the PSAB and modified the scope. Instead of adopting the terms of the CPM
1996-2, i.e. contracts where “Aboriginal populations
are the primary recipients”, the MFO instead referred to contracts that “serve a primarily Aboriginal population”. By thus shifting
the word “primarily”, the MFO ended up removing
the reference to the concept of “primary recipients”
in its evaluation. Therefore, it clearly did not analyze the two components required
by the PSAB, i.e. the primary recipients for whom was the procurement of the replacement
floating wharfs and whether these recipients matched the concept of Aboriginal
population. Furthermore, the MFO modified the concept of “Aboriginal population” to add the qualifier “primary”. Consequently, the MFO had to determine
whether the contract for the replacement floating wharfs were aimed at a
population primarily composed of more than 80% Aboriginal peoples, which does
not really make sense.
[113] According to the Court, this is not an interpretation and a reasonable
application of the PSAB as set out in the CPM 1996-2 and 1997-6 of the Treasury
Board. The MFO incorrectly identified the criteria that it had to consider in determining
whether the PSAB applied to the installation of the replacement floating wharfs
in the fall of 2009. In addition, the file does not help to know what information
had actually been considered by the MFO in authorizing it to find that the goods
or services did not “serve a primarily Aboriginal
population”, and that this test (even incorrect) was not met.
[114] In the absence of this evidence, and considering the erroneous
criteria considered by the MFO, the Court is not persuaded that the MFO’s
decision, even in 2009, may be considered to be within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law. To
the contrary, it is an unreasonable decision.
[115] What about the MPWGS now? Indeed, the only evidence of consideration
of the PSAB with respect to the contract award for the reconstruction of Mingan
wharf in 2012 comes from an affiant of the MPWGS, Jean Rochette. In his
affidavit, Mr. Rochette described the steps that he took in November 2012,
following the application received from the MFO to proceed with the acquisition
of the services for the reconstruction of Mingan wharf by public bid
solicitation, to see whether the PSAB applied to this procurement. In support
of his statement, Mr. Rochette referred to an e-mail of November 15, 2012,
that he sent to the senior project engineer at the MFO to inquire about the situation
and verify everything. Moreover, the Exhibit to which the affidavit of Mr.
Rochette refers consists of only one question on the use of the wharf. In his e‑mail
addressed to the MFO engineer, Mr. Rochette asked: [translation] “Do the members of the reserve
use the wharf?” And nothing more. To which the engineer answered: [translation] “Yes,
I think there are 1 or 2 Aboriginal fishermen”.
[116] Mr. Rochette did not ask for other information. He also noted in his
affidavit a map of the Mingan reserve obtained on November 21, 2012, but he
could not even locate the wharf on it. In cross-examination, Mr. Rochette also
recognized that this map did not play any role in his decision on the PSAB. Mr. Rochette
noted in concluding in his affidavit that the MFO did not designate this
contract as a setaside and that he himself [translation]
“also considers that there is no mandatory setaside for
Aboriginal businesses”.
[117] Therefore, it was only on the basis of the reply to the one question
on the use of the wharf that Mr. Rochette found that the PSAB did not apply to
the reconstruction project. Moreover, the Court again noted that the question asked
by Mr. Rochette errs by omission and does not help explain the criteria that
the federal ministers had to look at in making a finding as to the existence or
non-existence of a mandatory setaside for Aboriginal businesses, within the
PSAB. Neither the question nor the answer actually inform for whom the goods or
services are “the primary recipients” and whether
it relates to an “Aboriginal population”. The
fact of simply requesting or knowing whether the Innu of Ekuanitishit [translation] “use
the wharf” could certainly not establish whether they are the primary
recipients of goods and services related to the reconstruction of the wharf, nor
help determine whether they are an Aboriginal population within the meaning of the
PSAB.
[118] Mr. Rochette added in his affidavit that, [translation] “recently”, the
engineer explained to him the meaning of her answer and indicated that, of the
11 or 12 vessels that use the wharf, there are a few vessels owned by Aboriginal
peoples and that, among them, 1 or 2 vessels are operated by Aboriginal captains.
However, the affidavit does not help determine whether Mr. Rochette had this
piece of information in November 2012 when he stated that he had considered the
application of the PSAB, or whether he simply learned about it when he signed
his affidavit in April 2013.
[119] The Court is of the view that, in these circumstances, the decision of
the MPWGS to set aside the PSAB based on such incomplete elements can also not
fall within the range of possible, acceptable outcomes and does not constitute reasonableness.
The MPWGS simply did not analyze the criteria set by the PSAB to identify
whether the project to reconstruct the wharf was a mandatory setaside or not.
[120] Regardless of the perspective from which we view the steps taken by the
federal ministers to set aside the PSAB, they all reflect a situation where
their finding is unreasonable in the view of the Court.
[121] The Court observed that the Innu of Ekuanitshit, through Mr. Bernier
and Chief Piétacho, have repeatedly expressed their concerns regarding the lack
of involvement of the Innu in the reconstruction contract award process and the
reasons for which such a project was a unique economic opportunity for their community.
According to Chief Piétacho, not only could participating in the reconstruction
project have provided quality jobs for the Innu of Ekuanitshit during the
construction, but also participating in the project and the resulting wharf would
have been a source of pride for the community. However, according to Chief
Piétacho and Mr. Bernier, there was no economic benefit for the Innu of
Ekuanitshit, whether in terms of direct employment, subcontracting, security services
or the supply of materials of any kind whatsoever.
[122] There was no doubt that Mingan wharf was on the border of Aboriginal
land and that, the day after the fire in September 2009, the Innu of
Ekuanitshit had expressed their concern and their interest in the reconstruction
of the wharf. In such a context, it is clear that the federal ministers knew or
should have known that the application of the PSAB to the project to reconstruct
the Mingan wharf was something to carefully consider in the circumstances and
that this issue was at least worth solid and serious consideration before they
came to a conclusion. Moreover, the evidence shows that both the MFO and the
MPWGS addressed the question in a casual and cavalier manner, not even taking
the trouble to thoroughly consider the criteria established by the Treasury
Board directives with respect to the PSAB.
[123] It is not up to the Court to determine whether, in accordance with
an adequate analysis in respect of the applicable facts and directives, the contract
to reconstruct the Mingan wharf was a mandatory setaside within the meaning of the
PSAB. This is an exercise that is within the expertise of the federal ministers.
But the Court found that in light of the steps taken by the MFO and the MPWGS in
this file, the decision to set aside the PSAB was not unreasonable since the
federal ministers had neglected to consider the elements prescribed for
determining whether the PSAB applied.
(c)
The data and information available
[124]
Moreover, even if we assumed that the MFO considered
the requirements of the PSAB as part of the contract award for the
reconstruction of the wharf, the evidence indicated that the data and
information available to the MFO were limited and often inconsistent, and that
it could not have reasonably been able to find that the PSAB did not apply in
this case. In these circumstances, its decision to set aside the PSAB based on
the information it had was also unreasonable for this reason.
[125] The key data that was or could have been available to the federal
ministers is found in the affidavit of Mr. Boucher and in Exhibit LB-41, which the
Innu of Ekuanitshit are requesting be struck. It related to the number of
vessels, the harvest value, the number of landings and the harvest volume. In
his affidavit, Mr. Boucher indeed stated at paragraph 65 that the [translation] “data
for the years 2008 to 2011 show that the percentage of Aboriginal users does
not exceed the threshold of 80% and that the data be analyzed in terms of volume
of landed catch (49% on average), the value of these harvests (53% on average),
the number of landings (58% on average) or the number of vessels (40% on
average).”
[126] However, the data on the number of vessels was contradicted by other
elements of the file also originating from the MFO. A statement issued by a representative
of the MFO (the engineer who answered Mr. Rochette) and made the day
before the bid solicitation stated that there was apparently only 1 or 2 Aboriginal
vessels at Mingan wharf. Furthermore, both the preliminary approval of June
2010 and the final approval documents of October and November 2012 contained
statements made by the same MFO that a little more than a third of the vessels making
landings at Mingan wharf belonged to Aboriginal band councils. In addition, the
comparative analysis of the options prepared by the SCH in November 2010 indicated
that [translation] “close to half of the vessels are Aboriginal”, a statement
that the final approval document for the project of October 2012 also repeated
in its discussion options for the reconstruction of the wharf.
[127] These statistics require two comments. First, two of the data listed
by Mr. Boucher, i.e. the value of harvests (53%) and the number of
landings (58%) of “Aboriginal users”, exceeded the
threshold of 50%, while a third, the volume of landed catch, is at 49%. With
respect to the first criterion of services for “the
primary recipients” Aboriginal populations, suggests that the PSAB’s
requirement in this regard had possibly been met. Second, with respect to the
number of vessels considered to be Aboriginal, the available data from the MFO goes
from a third to nearly half of the vessels that visit Mingan wharf. In light of
these statistics, the Court is not persuaded that the information existed to
allow the MFO to reasonably conclude that Aboriginal users were not “the primary recipients” of services for the reconstruction
of Mingan wharf and thus to set aside the first criterion established by the Treasury
Board directives.
[128] The AGC argued that regarding this first criterion of “the primary recipients”, a 2006 census shows that the
population of the region of Minganie-Basse-Côte-Nord where Mingan wharf is
located is composed of 73.3% non-Aboriginal peoples and 26.6% Aboriginal
peoples. However, not only is there no indication in the file that the MFO or the
MPWGS had considered this information in its decision, but nothing indicates
either that this population is “the primary recipients”
of services to reconstruct the wharf, versus for example the Innu of
Ekuanitshit reserve.
[129] Furthermore, the data to which Mr. Boucher and the MFO referred concerned
statistics on the use of Mingan wharf rather than on the users of
the infrastructure. Indeed, they are referring to the number of vessels, the value
of harvests, the number of landings and the volume of catch. Moreover, the
second criterion for determining whether the PSAB applies to a procurement is obliged
to consider the concept of population and thus requires establishing
whether there is an “Aboriginal population”, i.e.
an area, or community in which Aboriginal people make up at least 80 percent of
the population or a group of people for whom the procurement is aimed in which
Aboriginal people make up at least 80 percent of the group. In both cases, the
PSAB specifically refers to an appreciation based on the Aboriginal population and
thus refers to a concept of individuals and persons involved. Moreover, the
numbers from Mr. Boucher and the MFO only refer to the harvests, landings
and vessels, each being a way to use the wharf rather than an individual who
uses it. Therefore, none of the data in the file discusses whether the primary
recipients of Mingan wharf are an Aboriginal population.
[130] Although the Court accepts that the number of vessels and the other
measures of Mingan wharf’s harbour activity are relevant to the analysis and
play an important role because of the business focus of the wharf, it remains
that the PSAB makes specific reference to a criteria of population and individuals.
Therefore, the federal ministers had to consider and look at user data to
assess the second criterion and determine whether or not the PSAB applied. That
is what the Treasury Board directives prescribed.
[131] The AGC argued that the data on the use of the wharf are in fact a
good approximation of the user data, and that the MFO could reasonably use the
first to estimate the second. The Court does not share this position, which it judges
to be speculative. The Court is rather of the view that it was not reasonable
to consider the data on the use of the wharf as an equivalent and interchangeable
measure to determine whether there is an “Aboriginal
population” within the meaning of the PSAB, and to presume that there
could have been a match between the numbers of use and the impact in terms of
the number of persons. Indeed, if for example the Aboriginal vessel used more manpower
or were less automated, the data on use would hide a higher number of individual
Aboriginal peoples involved in the fishery activities dependent on the wharf.
[132] The federal ministers did not establish the link between the number
of vessels, the harvest volume or the number of landings and the number of people
affected by the services of Mingan wharf. Therefore, the Court is not satisfied,
without other evidence or data in this respect, that the federal ministers could
reasonably infer information on the number of vessels, volume and value of harvests
or the number of landings, that this reflected the reality of the number of
persons for whom the services to reconstruct Mingan wharf are aimed. Therefore,
the information on the file would not help determine whether the primary
recipients of Mingan wharf were or were not an “Aboriginal
population” within the meaning of the PSAB.
[133] On this topic, the Court noted that the evidence submitted in this application
for judicial review also indicates that, according to the testimony of the Innu
of Ekuanitshit and, in particular, of Mr. Bernier, the vessels belonging
to Innu users allegedly account for the majority of commercial fishing days and
the majority of crew members on commercial vessel. Making up the majority of
users of the wharf, this population would therefore be the primary recipient of
the Mingan wharf, regardless of how this majority is measured. The supplementary
affidavit of Mr. Vigneault also indicated that the volume and the value of
the harvests may be deceptive indicators for measuring the use of the Mingan
wharf because of the different ways that they process the species (for example,
scaling on the vessel or not). Furthermore, the sheer number of users who own vessels
would also be deceptive because Aboriginal license holders use the same vessel for
several species, which is the opposite of non-Aboriginal vessels that use one vessel
for each species. Therefore, Aboriginal vessels go out to sea for much longer
than those of the other users, with the result that the vessel of Aboriginal users
account for more fishing days and crew members even if they are not the majority
of ships.
[134] Therefore, the data revealed during the application for judicial
review confirms that, if an adequate analysis of the users of Mingan wharf had
been conducted, the MFO and the MPWGS could not have reasonably set aside the application
of the PSAB.
[135] However, the Court did not accept the argument of the Innu of
Ekuanitshit that the calculation of the Aboriginal use of the Mingan wharf was
erroneous because it excludes all the non-commercial users. The Innu of
Ekuanitshit are confusing here the Mingan harbour and the Mingan wharf. The harbour
refers to the entire Mingan harbour area while the wharf concerns a very
specific infrastructure for the commercial fishing industry. The evidence on
the record shows that the non-commercial Aboriginal users are present at the Mingan
harbour but that they do not use the Mingan wharf, which is the only subject of
the reconstruction contract awarded by the federal ministers. The non-commercial
activities of the Innu of Ekuanitshit at Mingan harbour, such as excursions to
the Mingan islands or family departures to go hunting migratory birds in the Mingan
archipelago, in fact leave from Mingan harbour and not from the wharf itself. They
come from the floating wharfs of Parks Canada located to the west of the commercial
wharf. Although Mingan harbour is indeed both a fishing and recreation harbour
(thus designated by the SCH), the wharf itself is only used for commercial
fishing. Therefore, the federal ministers rightly did not (and did not have to)
consider the non-commercial use of Mingan harbour by the Innu of Ekuanitshit in
their appreciation of the application of the PSAB to the project to reconstruct
the wharf.
(3)
Conclusion
[136] Considering all these elements, the Court found that it was not reasonable
to simply recycle the analysis that was apparently done for the temporary replacement
floating wharfs and to assume, ex post facto, that what had been done
for these temporary structures would also be best for the reconstruction of
Mingan wharf. Therefore, the Court is of the view that with respect to the evidence
in the record, the decision to set aside the application of the PSAB was made without
taking into account the criteria expressly prescribed by the PSAB and relied on
incomplete and inconsistent evidence that did not help reasonably conclude that
the PSAB did not apply in this case.
[137] Therefore, the decision of the MFO and the MPWGS does not fall
within the range of possible, acceptable outcomes in the circumstances and is
not reasonable. Furthermore, the absence of reasons explaining this decision to
set aside the PSAB, which removes the transparency and intelligibility required
to justify it. Thus, the decision and explanations given do not meet, in any case,
the standard of reasonableness (Dunsmuir at para 54; Montréal at
paras 37-38). Although the standard of reasonableness requires deference with
respect to the decision made, it still requires that the decision be based on
the file. In this case, the Court cannot identify on which basis the federal
ministers could have reasonably decided that the PSAB was not applicable.
[138] During the hearing, counsel for the Innu of Ekuanitshit agreed that
it is not up to the Court, in an application for judicial review such as this, to
substitute its opinion for that of federal ministers and decide in their place whether
the PSAB indeed should have applied in light of the facts that were allegedly submitted
into evidence. That was the area of expertise of the decision-maker. Therefore,
the Court is not able to determine, based on the evidence that was before the
federal ministers and that is before it now, whether the PSAB should have applied
to the reconstruction of the wharf or whether the application of the PSAB allegedly
allowed the Innu of Ekuanitshit to obtain the accommodation they sought. The
Court can only note that an adequate consideration of the PSAB may have led to
a different result with respect to the process of awarding the contract for the
reconstruction of Mingan wharf.
[139] Newfoundland Nurses established that, where
readily apparent, evidentiary lacunae may be filled in when supported by the
evidence, and logical inferences, implicit to the result but not expressly
drawn by the decision-maker. However, as the Court expressed in Komolafe v
Canada (Minister of Citizenship and Immigration), 2013 FC 431 at para 11,
Newfoundland Nurses does not authorize the Court
to guess what findings might have been made
or to speculate as to what the tribunal might have been thinking. This is
particularly so where the reasons are silent on a critical issue. It is ironic
that Newfoundland Nurses, a case which at its core is about deference
and standard of review, is urged as authority for the supervisory court to do
the task that the decision maker did not do, to supply the reasons that might
have been given and make findings of fact that were not made. This is to turn
the jurisprudence on its head. Newfoundland Nurses allows reviewing
courts to connect the dots on the page where the lines, and the direction they
are headed, may be readily drawn. Here, there were no dots on the page.
[140] Therefore, it is not up to the Court, in this judicial review, to define
the dots on the page when they do not even appear clearly in the file. Deference
means that the Court must sometimes refer the matter back to the decision-maker
to give it the opportunity to establish and give its own reasons for its decision
(Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 at paras 28-29). In this
case, the Court must therefore limit itself to stating that, in its view, the federal
ministers’ decision on the PSAB is not reasonable since the federal ministers did
not analyze the criteria that the PSAB imposed on them to consider and that the
information required for determining whether the PSAB applied or not were
inadequate. Of course, as the Innu of Ekuanitshit point out, one consideration
that allegedly led to the application of the PSAB could have made possible a
wide range of options, including that of the accommodation sought by the community
and the award of a contract by mutual agreement. But it is not the role of the
Court to determine in this case what option might have been available.
[141] In these circumstances, the Court is of the view that it does not
have to issue the specific orders sought by the Innu of Ekuanitshit in their original
notice of application and to issue a declaration that would determine whether
the project to reconstruct the Mingan wharf does or does not constitute goods
or services for which “Aboriginal populations are the
primary recipients” and is subject to the PSAB. Furthermore, since the
Innu of Ekuanitshit no longer seek the cancellation of the solicitation notice
or the contract to reconstruct Mingan wharf, in the circumstances, the Court
does not have to make conclusions on these aspects of their application for
judicial review or refer the file back to the federal ministers so that they
may reconsider the question of the application of the PSAB to the procurement
at issue.
B.
Did the federal ministers have a Haida duty to consult
and accommodate the Innu of Ekuanitshit as part of the process leading to the contract
award to reconstruct the wharf?
[142] The Innu of Ekuanitshit also argued that the
federal ministers had failed, in addition to the more specific context of the
PSAB, in their duty to consult and accommodate Aboriginal peoples, which is
generally the responsibility of the Crown and the federal government. More specifically,
in their notice of amended application, the Innu of Ekuanitshit expressly
sought the following remedies:
[translation]
1. A declaration that the ministers of
Fisheries and Oceans Canada and Public Works and Government Services Canada … :
a. did not adequately fulfil their
duty to consult the Innu of Ekuanitshit on the components of the project to
reconstruct the Mingan wharf that might adversely affect their Aboriginal
rights; and
b. did not seek, in a spirit of
conciliation, the accommodation measures required by the honour of the Crown;
…
6. The referral of procurement established
by the reconstruction of Mingan wharf back to the Minister of Fisheries and
Oceans and the Minister of Public Works and Government Services, that they may
a. consult, in accordance with
s. 35 of the Constitution Act, 1982, the Innu of Ekuanitshit on the
components of the project that may adversely affect their rights and seek
accommodation measures as required by the honour of the Crown.
[143] Therefore, this component of application for judicial review refers
to the Crown’s duty to consult and accommodate as set out by the Supreme Court
of Canada in Haida and the case law that followed it. Certainly, in
their memorandum of fact and law, the Innu of Ekuanitshit referred more succinctly
and generally to a statement that the federal ministers had not properly
fulfilled [translation] “their duty to consult and accommodate the Innu of
Ekuanitshit” before making the decision established by the contract
award for the reconstruction of Mingan wharf or by the solicitation notice. However,
there is no doubt that this language also refers to the duty to consult and
accommodate as developed by the Supreme Court on the question.
(1)
What is the applicable standard of review?
[144] The first question to determine is again
once the applicable standard of review to this second part of the application
for judicial review of the Innu of Ekuanitshit.
[145] The standard of review that governs matters where “the government's conduct is challenged on
the basis of allegations that it failed to discharge its duty to consult and
accommodate pending claims resolution” was the
subject of a first analysis in Haida (at para 60). The consensus in the
case law is that a question relating to the existence or content of the duty to
consult or accommodate is a legal question that requires the standard of correctness (Haida at para 61; Rio Tinto Alcan Inc. v Carrier
Sekani Tribal Council, 2010 SCC 43 (Rio Tinto) at paras 63-65; Beckman
v Little Salmon/Carmacks First Nation, 2010 SCC 53 (Beckman) at para 48;
Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA
189 (Ekuanitshit FCA) at para 82; Long Plain First Nation v.
Canada, 2012 FC 1474 (Long Plain) at paras 63-64). Similarly, the
determination of the scope of this duty is also reviewable on a standard of correctness,
i.e. a good understanding of the seriousness of the claim or impact of the
infringement (Haida at para 63; Long Plain at paras 63-64).
[146] However, to decide whether, by its efforts, the Crown fulfilled its
duty to consult in a particular situation, the facts in the case must be
assessed in light of the content of the duty. Therefore, the standard of review applicable to the satisfaction or adequacy of
the duty to consult and accommodate and whether the Crown fulfilled its duty is
that of reasonableness, since this decision is a question of mixed fact and law
(Haida at para 63; Rio Tinto at para 64; Long Plain at
para 65; Council of the Innu of Ekuanitshit v Canada (Attorney General),
2013 FC 418 (Ekuanitshit) at paras 96-98).
(2)
What is the content of the duty to consult and accommodate?
[147] The Supreme Court of Canada set out the
framework and the background of the duty to consult and accommodate in Haida,
Rio Tinto and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 (Mikisew). Therefore, the Supreme Court held
that the Crown has a duty to consult and, where appropriate, accommodate, when
it contemplates conduct likely to have adverse effects on Aboriginal or treaty
rights, established or potential, of Aboriginal peoples in Canada. The highest court
in the country established that this duty arises from the honour of the Crown and
from the special relationship between the Crown and Aboriginal peoples. This
duty to consult is based on judicial interpretation of the obligations of the
Crown in the context of existing Aboriginal and treaty rights, as recognized
and affirmed in section 35 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 (Constitution
Act, 1982).
[148] In the recent matter of Hupacasath First Nation v Canada (Minister
of Foreign Affairs), 2015 FCA 4 (Hupacasath), the Federal
Court of Appeal aptly summarized, at paras 80-84, the background and the
requirements of the duty to consult and accommodate. The Court identified in
the following terms the applicable law with respect to what creates the duty to
consult Aboriginal peoples and, as required, to consider their Aboriginal
rights or titles claimed:
[80] … Having considered those submissions,
I conclude that Tsilhqot'in Nation has not changed the law concerning
when Canada's duty to consult is triggered. Indeed, it confirms that Rio Tinto,
Mikisew, and Haida, all supra, still set out the correct law on
this point: see Tsilhqot'in Nation at paragraphs 78, 80 and 89.
[81] Of the three cases, Rio Tinto comes
later and incorporates the earlier holdings in Mikisew and Haida
concerning the duty to consult. In Rio Tinto, the Supreme Court set out specific
elements that must be present to trigger the duty to consult. However, it also
set out certain aims the duty is meant to fulfil. These aims are best kept
front of mind when assessing whether the specific elements are present.
[82] The Supreme Court identified two aims
the duty to consult is meant to further. First is "the need to protect
Aboriginal rights and to preserve the future use of the resources claimed by
Aboriginal peoples while balancing countervailing Crown interests": Rio
Tinto, supra at paragraph 50. Second is the need to "recognize that
actions affecting unproven Aboriginal title or rights or Agreement rights can
have irreversible [adverse] effects that are not in keeping with the honour of
the Crown": Rio Tinto, supra at paragraph 46.
[83] This last-mentioned idea -- that the
duty is aimed at preventing a present, real possibility of harm caused by
dishonourable conduct that cannot be addressed later -- is key:
... The
Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal
interests where claims affecting these interests are being seriously pursued in
the process of [Agreement] negotiation and proof. It must respect these
potential, but yet unproven, interests. The Crown is not rendered impotent. It
may continue to manage the resource in question pending claims resolution. But,
depending on the circumstances, discussed more fully below, the honour of the
Crown may require it to consult with and reasonably accommodate Aboriginal
interests pending resolution of the claim. To unilaterally exploit a claimed
resource during the process of proving and resolving the Aboriginal claim to
that resource, may be to deprive the Aboriginal claimants of some or all of the
benefit of the resource. That is not honourable.
(Haida, supra, at paragraph
27.)
[84] Given those aims, the Supreme Court in
Rio Tinto, supra at paragraphs 40-50 has told us three elements must be present
for the duty to consult to be triggered:
- a "real or constructive
knowledge of [an Aboriginal] claim to the resource or land to which it
attaches" (at paragraph 40);
- “Crown conduct or a Crown decision
that engages a potential Aboriginal right," meaning conduct even at the
level of "strategic, higher level decisions" (at paragraph 44) that
"may adversely impact on the claim or right in question" (at
paragraph 42) or create a "potential for adverse impact" (at
paragraph 44);
- a
"possibility that the Crown conduct may affect the Aboriginal claim or
right" in the sense of "a causal relationship between the proposed
government conduct or decision and a potential for adverse impacts on pending
Aboriginal claims or rights" (at paragraph 45).
[149] Therefore, the duty to consult arises when the Crown has knowledge, real
or constructive, of the potential existence of the Aboriginal right or title
and contemplates conduct that might adversely affect it (Haida at para
35). In Rio Tinto, the Supreme Court specified
that this duty requires three elements to take shape: “(1) the Crown's knowledge, actual or
constructive, of a potential Aboriginal claim or right, (2) contemplated
Crown conduct; and (3) the potential that the contemplated conduct may
adversely affect an Aboriginal claim or right” (Rio
Tinto at para 31).
[150] The duty that the Government of Canada has to consult Aboriginal
peoples and accommodate their interests in some circumstances relies on the
honour of the Crown (Haida at paras 16 and 20), which exist “[i]n all its dealings with Aboriginal
peoples, from the assertion of sovereignty to the resolution of claims and the
implementation of treaties”. This principle of
the honour of the Crown must be understood generously in order to reflect the
underlying realities from which it stems (Haida at para 17) and the
duty to consult must therefore be contemplated in a “generous” and
“purposive” manner (Rio Tinto at para 43). This
duty exists even if the Aboriginal rights and titles claimed are not specific
enough. That said, in all cases, the duty to consult must still be connected to
an Aboriginal right or claim. The objectives of the recognition of the duty to
consult incidentally consist in protecting Aboriginal rights against any harm
or irreversible adverse effects and to preserve the future use of the resources
claimed by Aboriginal peoples (Hupacasath at para 103).
[151] Moreover, it is not any Aboriginal rights that give rise to the duty
to consult. The Aboriginal rights that are relevant to the purposes of the duty
to consult are indeed those protected by paragraph 35(1) of the Constitution
Act, 1982, which recognizes and affirms the existing aboriginal and treaty
rights of the aboriginal peoples of Canada. Paragraph 35(3) specifies that
it is understood, for the purposes of this provision, that “treaty rights” include “rights
that now exist by way of land claims agreements or may be so acquired”. The Aboriginal titles refer to titles resulting from the
occupation of lands by the Aboriginal peoples prior to the assertion of
European sovereignty in Canada (Ekuanitshit FCA at para 84). The duty to consult aims to
protect Aboriginal and treaty rights and further the goals of reconciliation
between Aboriginal peoples and the Crown (Rio Tinto at para 34; Manitoba
Metis at para 66).
[152] As the Court stated in Simon, case law does not, however,
provide that the honour of the Crown and the duty to consult and accommodate is
at stake in all dealings between the Government of Canada and its Aboriginal
peoples, whenever the Crown takes an action that may indirectly impact Aboriginal
peoples (Simon at para 119). The Courts, in Haida
and in the decisions that followed, instead pointed out that the honour of the
Crown arises only when there is a specific Aboriginal interest or
right at stake and that Aboriginal
peoples have succeeded in showing that Aboriginal or treaty rights existed that
may be adversely affected by a decision or a measure by the Canadian
governmental authorities. It is these rights, and only
these rights, that are relevant.
[153] For example, in Haida, the Supreme Court had dedicated
the duty to consult and accommodate, which falls on the Crown in managing the forests
of Haida Gwaii, in the background of an unproven but credible statement that Haida
Nation had put forward regarding an Aboriginal title that it holds on the land and
their rights to harvest mature red cedars. The adverse effect was connected to
the road passing through Aboriginal land. In Misikew, the matter dealt
with the adverse effects of a road passing through a park on Aboriginal hunting
and trapping activities. In Hupacasath, the various Aboriginal rights claimed
had been expressly stated and detailed by the Aboriginal nation involved. They
were related to the conservation, exploitation, management, protection and very
specific use of fish, wildlife and other resources within the traditional
territory of the Aboriginal nation. The Government of Canada had confirmed that
it was aware that these Aboriginal rights had been put forward by the Aboriginal
peoples during the negotiation of treaties and in the context of disputes, and
it recognized that these rights originated in article 35 of the Constitution
Act, 1982.
(3)
Was there a duty to consult and accommodate in
this case?
[154]
The issue to be determined is thus whether these
conditions for a duty de consult and accommodate exist in this case. There is
no doubt that there is a measure contemplated by the Crown, i.e. the project to
reconstruct the Mingan wharf. However, the question remains whether (1) the
federal ministers had knowledge, either real or constructive, of a potential
Aboriginal claim or right of the Innu of Ekuanitshit, and whether (2) there
was potential that the contemplated conduct may adversely affect an Aboriginal
claim or right.
[155] The Innu of Ekuanitshit argued that in this case, a duty to consult arose
with respect to a project to reconstruct the Mingan wharf, since this project would
adversely affect their Aboriginal
rights, i.e. their rights relating to the land on which the wharf was located. Indeed,
according to the Innu of Ekuanitshit, this land has always been occupied by
them and plays an important role in their traditional use of the land. The Innu
of Ekuanitshit stated that they had held an aboriginal title on this land, a
claim that the Crown incidentally considered serious enough to accept it for
the purposes of negotiating a treaty.
[156] The Court does not agree with the arguments of the Innu of
Ekuanitshit on this question. Rather, the Court is of the view that, in the
circumstances and for the reasons that follow, the evidence does not establish
that the conditions existed to create a duty to consult within the meaning of Haïda.
It is true that the application of policies or Treasury
Board directives by a federal board, commission or other tribunal may give rise
to the duty to consult and accommodate that the Crown owes to Aboriginal
peoples (Long Plain at para 47, 55 and 66). But the Aboriginal community
must also be able to argue that it has an “arguable
claim” that will be affected by the directive or the measure in question.
And the Aboriginal community must also declare and demonstrate the existence of
an adverse effect caused by the measure contemplated by the Aboriginal claim or
right.
[157] That is not so in this case. The evidence shows that, contrary to
most of the authorities and authorities cited by the Innu of Ekuanitshit, the
federal ministers did not have knowledge, either real or constructive, of an Aboriginal claim or right of the Innu of
Ekuanitshit as part of the project to reconstruct the Mingan wharf and that
could be adversely affected by the conduct or measure contemplated
by the Crown.
(a)
Absence of Aboriginal rights or titles identified
[158] Haida and its descendence require, to
open the door to the duty to consult and accommodate, situations where the
claim relies on a “strong prima facie case”
supporting the existence of an Aboriginal right or title and the seriousness of
the potential adverse effects on the right or title and where “deep consultation, aimed at finding a satisfactory interim
solution, may be required” (at paras 39, 43-45).
[159] Moreover, the Innu of Ekuanitshit did not argue, in their
discussions with the federal ministers on the project to reconstruct the Mingan
wharf or in the concerns that they expressed with respect to the project, the existence
of such an Aboriginal right or title claimed within the meaning of jurisprudence. Moreover, the notice of
application simply refers to their “Aboriginal rights” or their “rights”, no
more. Submissions were indeed made by the Innu of
Ekuanitshit with respect to the positive economic benefits and impacts that
their participation in the project to reconstruct the wharf could generate. However,
after reviewing the evidence, the Court found that these submissions never
raised Aboriginal rights or a particular land claim related to the reconstruction
project. The Court is of the view that the claims
of the Innu of Ekuanitshit with respect to their participation in the project
to reconstruct the wharf did not flow from potential Aboriginal claims or a treaty
right under paragraph 35(1) of the Constitution Act, 1982.
[160] Therefore, the Court shares the position of the AGC that the Innu of
Ekuanitshit have not produced sufficient and conclusive evidence to show which Aboriginal
rights risked being affected by the decision of the federal ministers, since it
simply affects the tendering process of a contract to reconstruct the wharf. A
measure to obtain a contract for the reconstruction of an existing wharf does
not concern, in itself, without supporting evidence, an Aboriginal right or
land rights where the wharf is located.
[161] It is important to review the submissions made by the Innu of
Ekuanitshit during their various discussions with the MFO and the MPWGS between
the fire of September 2009 and the contract award to reconstruct the wharf in January
2013. These submissions began in September 2009 with the letter addressed to the
MFO in place by Chief Piétacho and the MFO’s promise to involve the Innu of
Ekuanitshit in the process of awarding the contract. The Innu of Ekuanitshit, specifically
through Mr. Bernier and Chief Piétacho, had then indicated several times, in
particular at the end of 2012, that the project to reconstruct the wharf would
be completed in the community of Ekuanitshit itself and that, in the minds of
the Innu, the contractor had to be a business belonging to the community, or at
least that the members of the community had to be involved in the project.
[162] In his letter of September 21, 2009, to the MFO at the time, Chief
Piétacho spoke of the wharf as the [translation]
“primary infrastructure of our development” in the commercial fishing sector
and the fact that [translation] “building our fisheries gives work to youth and is part of
the tools made available to us to improve the social agenda of our Innu
communities”. At no time was there any reference to Aboriginal or land rights
put in issue by the project to reconstruct the wharf. In the same way, the resolutions
of the Conseil des Innu of Ekuanitshit of December 2009 speak of the
importance to act quickly [translation]
“so as to reconstruct this infrastructure that is
essential to the fishing industry in the region”.
[163] The minutes of the meetings of October and December 2012 refer to the
application that the Innu of Ekuanitshit made to the MFO to consider awarding
the contract to construct the new wharf by mutual agreement, but without reference
to Aboriginal rights or title affected by the project.
[164] The most specific and detailed evidence describing the [translation] “concerns”
of the Innu of Ekuanitshit with respect to the project to reconstruct the wharf
are two e-mails dated November 6, 2012 addressed by Mr. Bernier to the
representative of SNC as part of the environmental consultation led by SNC at
the end of 2012. Thus, Mr. Bernier expressed the concerns of the Innu of
Ekuanitshit with respect to the project to reconstruct the Mingan wharf:
…
[translation]
Our concerns are with respect to the design
and construction phase.
Design:
As a member of the Association portuaire de
Mingan, we have actively participated in the establishment of the design of the
new infrastructure with Fisheries and Oceans Canada. Unfortunately, the budgetary
aspect has especially driven the work of the MFO in this respect. The user
environment, the communities of Ekuanitshit, Longue-Pointe-de-Mingan, the
commercial fisheries, Poséidon, pleasure craft users and Parks Canada have
identified their concerns and needs being equipped with an adequate
infrastructure and meeting the long term needs. But, again, the federal
government heard only that the dollars were available for reconstruction. That
is why there was a delay in the Project since the community attempted to
convince the persons responsible at the MFO to take care of it long term and
for all users.
Construction:
The wharf should have been built a little
more to the west of the site of the old infrastructure because the pilings of this
old infrastructure are still there. In the 60s or 70s, a boat allegedly lost
several boxes at the site of the old wharf and around it. These boxes
apparently contained archeological objects. Therefore, it would be relevant to
know this history, to find out its accuracy and conduct appropriate surveys.
The community uses this area for the
following activities:
- Walking (many
families and many youth visit this area during good weather);
- Pleasure craft landing site for the
period beginning in March and ending in October;
- Commercial fishing (Pêcheries
Shipek s.e.c.);
- Tourist activities (also our Innu
Cultural Centre was built nearby);
- Sport fishing activities;
- Religious activities (the church is
nearby as well as the cemetery and external contemplation areas).
In addition, the environmental aspect of the
impact of the construction on marine species (noise, potential spills or others)
concerns the community.
Therefore, it seems very important to us to consider
the measures that the MFO intends to take to assure the community that all the mitigation
measures will be taken to diminish the impacts of the construction on activities
and the protection of the marine area and the bank. Furthermore, measures were
taken in case of archeological finds.
In conclusion, we have asked that the community,
through its construction companies, be the construction contractor. This Project
will be achieved on Ekuanitshit land and in the community of Ekuanitshit itself.
When construction projects are carried out on our land, many federal (AADNC,
among others) and provincial (MTQ, among others) departments make contracting agreements
with the community by mutual consent. This request was made to the MFO, who was
not open to this idea, even if other departments are doing it. This is not
acceptable for the community, who did not intend to let other external
contractors perform work on our land that our businesses can do.
We have the expertise to take the responsibility
of contractor and it would be appropriate for us to provide assurance to our
population that their concerns will be considered. I have attached the experience
that our companies have had the past few years with respect to managing various
construction projects.
We hope that our concerns will be
considered.
Yours sincerely
[165] In a second e-mail addressed to the representative of SNC, again on November 6,
2012, Mr. Bernier added the following:
…
[translation]
Following my e-mail this morning regarding
our concerns, I had not given much explanation on two points:
The pilings of the old wharf: Will they be
removed? Or will there be protective measures to ensure the safety of users?
The activities of the Innu Cultural Centre: the
Project provides, in the summer of 2013, activities on an exterior site along the
bank to the west of the site of the new construction of the wharf. A secure
perimeter must be planned during the construction as well as other measures to
prevent disturbing activities and all the community’s activities (walking, cultural,
tourist and religious activities).
It should be noted that this site along the
bank was, before the community was created, the gathering place for families
during the summer months. Now, these banks are still visited a great deal. The
safety and the flexibility to freely exercise our activities must be considered.
…
[166] Mr. Bernier also sent a copy of a part of these concerns to the
office of the minister of Transport in December 2012, indicating that Mingan
wharf [translation] “is directly in the environment of the community that should
have been considered in this project”.
[167] The Court again noted that nowhere in these statements does it
allude to existing Aboriginal rights or titles put in issue by the reconstruction
project and that no worry or concern for Aboriginal
rights or title would be adversely affected by the reconstruction project. Therefore,
these are not sufficient concerns to create the duty to consult and accommodate
that the Innu of Ekuanitshit claim.
[168] Even the affidavit signed by Chief Piétacho after awarding the
contract and as part of this application for judicial review does not contain
any evidence that could describe an Aboriginal right or a land claim that could
have existed during the discussions with the federal ministers during the project
to reconstruct the Mingan wharf. In his affidavit, Chief Piétacho noted in
particular the following:
[translation]
7. Since the time of my father and time immemorial
before that, the Innu have gone to the seaside to fish in the salmon rivers or
to hunt seal. They used all of the seal: they ate the meat, they prepared
clothing such as moccasins and mittens with the skin and they stocked the fat
for the winter.
…
10. The lands that currently form the reserve
were transferred to the federal government by Quebec in 1963, including the
land that surrounds Mingan wharf … .
…
21. In the fall of 2012, an analytical
biologist … employed by SNC-Lavalin contacted the Council of the Innu of
Ekuanitshit by e-mail and telephone to ask some questions on the concerns of
the Innu regarding the environmental effects of the reconstruction of Mingan
wharf.
22. These contacts are not, in my mind, adequate
consultation with the Innu of Ekuanitshit by the Government of Canada on the elements
of the project to reconstruct the Mingan wharf, which will likely affect our
rights.
23. Moreover, one of the accommodation
measures that we allegedly required was an economic role in carrying out the
project, but the representatives of the MPWGS did not address this aspect of
the project.
24. I think it was an opportunity for us to
be able to build the wharf and be proud of it because we could tell our
children and grandchildren that we did this.
[169] In his reply to the written examination, Chief Piétacho also added
this:
[translation]
According to the elders with whom I have
spoken, before the construction of the wharf, people tied their canoes to a
floating space that was located at the same place where the old Mingan wharf was
located before the fire. Indeed, the bank where the wharf was built had been
used for a very long time as an important gathering place for the community, to
meet with the hunters, fishermen and other members of the community returning
from outside.
[170] Nowhere did Chief Piétacho specify which Aboriginal rights would be
at issue or how the elements of the project to reconstruct the Mingan wharf would
adversely affect these rights. Again, there was no explanation here regarding Aboriginal
rights claimed by the Innu. A simple general statement that the project to reconstruct
the Mingan wharf would likely [translation] “affect our rights” is insufficient to meet the conditions giving rise to the duty to consult
and accommodate within the meaning of Haida.
[171] As was the case in Simon, the Innu of Ekuanitshit did not
succeed in showing that Aboriginal or treaty rights existed that could be adversely
affected by the decision of the federal ministers. In
this case, there is no future or possible effect supported by evidence on Aboriginal
rights or Aboriginal titles claimed by the Innu of Ekuanitshit or on the future
use of the resources claimed by Aboriginal peoples. Indeed, in this case, it
was not the impact of the reconstruction project on the land or resources claimed
by the Innu that was raised, it is the impact of the project itself on the economic
participation of the Innu on the reconstruction of the wharf. No Aboriginal
rights or title were raised, at stake or jeopardized in this context. The
concerns relate to a potential construction contract.
[172] The mere fact that Mingan wharf is found on the land on which the
Innu of Ekuanitshit state and claim an Aboriginal title and that the federal
government had found the claim sufficiently serious enough to accept to the
purposes of negotiating a treaty is not sufficient to trigger a duty to consult
and accommodate within the meaning of Haïda specifically as part of a bid
solicitation for a reconstruction project. Similarly, the statement that the
harbour (and not the wharf) is a location that the Innu have always visited and
plays an important role in traditional use of the land does not create an Aboriginal
right affected by the awarding of a contract for the reconstruction of the
wharf.
[173] Furthermore, the fact that the Innu of Ekuanitshit had referred to
the desired accommodation and had clearly expressed to the federal ministers the
desire to have a contract by mutual agreement for the reconstruction of the
wharf is not sufficient, of itself, to trigger a duty to consult, if the premises
giving way to this consultation do not exist. There is no duty to accommodate
independent and separate from the duty to consult; the duty to accommodate is
rather the result of the duty to consult and the recognition of a breach of Aboriginal
rights and titles claimed.
[174] The Innu of Ekuanitshit do not call into question the existence of
the wharf or the role of the wharf for the Aboriginal community. They only raised
their interest in participating in the economic benefits flowing from the contract
to reconstruct the wharf itself. This is not a situation where Aboriginals oppose
a project (for example, an industrial activity of the federal government in the
forestry, mining or hydro-electric sectors) because of its potential negative
impact on Aboriginal rights or on land claimed. Rather, it is a situation where
concerns relate to the impact of the reconstruction project itself in terms of
jobs and direct economic benefits for the Innu of Ekuanitshit, totally separate
and independent from the Aboriginal rights or titles claimed.
[175] This does not mean that the complaints of the Innu of Ekuanitshit
regarding the contract award process for the wharf reconstruction were
unfounded, illegitimate and did not warrant being heard and taken into account
by the federal ministers. This is what could and should have been done by the
MFO and the MPWGS as part of applying the PSAB. However, this is not a
situation where the Innu of Ekuanitshit have discharged their burden of
establishing the existence of the conditions triggering a duty to consult and
accommodate within the meaning of Haida. In this case, the issue of
Aboriginal title was simply not directly raised by the Innu of Ekuanitshit.
There is no evidence showing an interest that the Innu of Ekuanitshit could
claim as part of the project to reconstruct the Mingan wharf or of an adverse
effect that the project could have on any right claimed. Indeed, the concerns
of the Innu of Ekuanitshit with respect to the project to reconstruct the
Mingan wharf are unrelated to an Aboriginal right or title.
[176] The Court agrees with the Innu of Ekuanitshit that the duty to consult
may exist even when broader economic interests, not only traditional Aboriginal
rights, are at stake (Ehattesaht First Nation v British Columbia (Forests,
Lands and Natural Resource Operations), 2014 BCSC 849 [Ehattesaht]
at para 61). The time when Aboriginal activities consisted only in hunting,
fishing, trapping and selling artisanal products has passed. Aboriginal
peoples' economic reality can no longer be reduced to only those traditional
activities.
[177] However, precedents where these economic interests were taken into
account to establish a duty to consult were established when these interests
were closely related to an Aboriginal right or title or to an underlying
territorial right (Ehattesaht at paras 59-62; Da’naxda’xw/Awaetlala
First Nation v British Columbia Hydro and Power Authority, 2015 BCSC 16; Squamish
Nation v British Columbia (Community, Sport and Cultural Development), 2014
BCSC 991). Thus, the economic aspects of land claimed and the economic use of
land have been acknowledged as a situation that may trigger the duty to
consult. In addition, the federal government's knowledge of the Aboriginal
title claimed was generally never at issue in these matters and was admitted.
For example, in Ehattesaht, an Aboriginal right to a part of the land on
Vancouver Island was at issue and the government’s conduct resulted in a lost
economic opportunity with respect to stumpage fees from a part of this land.
The Crown's knowledge about Aboriginal rights to the land involved was
acknowledged and the conduct impacted the land and the resources to which the
Aboriginal people were claiming an Aboriginal right.
[178] This situation is therefore quite different from the vast majority
of cases where the duty to consult and accommodate was recognized by the
courts, and where, more often than not, the federal government agreed, based on
evidence and on the steps undertaken by the Aboriginal people, that the first
component of Haida was met (Rio Tinto; Mikisew; Long
Plain; Ekuanitshit; Hupacasath). Those cases dealt with the
Crown's conduct directly related to the lands claimed by Aboriginal peoples
concerned and to the resources found on those lands. In this matter, that is
not the case.
[179] Extending the conditions that give rise to the duty to consult and
accommodate Aboriginal people to a situation like the procurement project
relative to the reconstruction of the Mingan wharf would mean that the duty to
consult and accommodate exists in every form of interaction between Aboriginal
peoples and the Crown regardless of whether Aboriginal rights or titles are at
issue, and of whether the Aboriginal peoples have shown the existence of an
adverse effect on their rights. In the Court's view, this is not what is
indicated by the case law on the subject.
(b)
Absence of adverse impact and causal link
[180] With respect to Aboriginal rights, the duty
to consult and accommodate also requires Aboriginal people to show the "adverse impact" on the Aboriginal rights relied on. That
requirement to show the potential adverse impact on an Aboriginal right is the
third condition to give rise to a duty to consult and accommodate. In Rio
Tinto, at paras 45-50, the Supreme Court explains that the party seeking to
show the existence of this factor must establish (1) that there is a potential
significant adverse impact on (2) an Aboriginal right, which is (3) caused by
the conduct or decision of the government. Again, the Court must take a
generous, purposive approach to this issue (Rio Tinto at para 46).
[181] With respect to infringed Aboriginal rights, "Adverse impacts extend to any effect that may prejudice
a pending Aboriginal claim or right" (Rio Tinto at para 47),
as long as the claim is credible. The prejudice must be on the future exercise
of the right itself and does not extend to adverse impacts on the negotiating
position of an Aboriginal group (Rio Tinto at paras 46, 50). Finally, it
must be noted that, in terms of causality, it is necessary for the party
claiming that a duty to consult exists to show causation between the federal
government's conduct or decision and the significant adverse impact on the
rights at issue.
[182] To rule on the potential that the contemplated conduct will have an
adverse impact on the Aboriginal rights claimed and on the issue of whether
that component of the duty to consult criterion is met, it is crucial to
determine "the degree to
which conduct contemplated by the Crown would adversely affect" the Aboriginal rights claimed (Mikisew at para 34). Adverse
impacts extend to any effect that may prejudice an Aboriginal claim or right,
including high‑level management decisions or structural changes to the
resource’s management even if these decisions have no immediate impact on lands
and resources (Rio Tinto at para 47).
[183] For example, at paras 72-77 of Haida, the Supreme Court
determined that there was a potential for long-term prejudice to the Aboriginal
rights of the Haida Nation, specifically, to the right to harvest trees, caused
by the transfer of a commercial logging licence. In Mikisew, at
para 44, the Supreme Court found that a winter road construction project
proposed by the Crown could potentially result in a diminution in quantity of
the Mikisew harvest of wildlife, caused by a decline in population, disruption
of migration patterns and increased poaching. In Beckman, the Supreme
Court noted that there were potential adverse impacts on the First Nation's
right to practise subsistence hunting and fishing caused by a land grant within
their traditional territory.
[184] Inversely, in Ahousaht First Nation v. Canada (Fisheries and
Oceans), 2008 FCA 212, at para 37, the Federal Court of Appeal confirmed
that mere submissions regarding adverse impacts on the socioeconomic interests
of an Aboriginal community, without supporting evidence, are not sufficient to
trigger a duty to consult. In the same vein, mere speculative or unlikely
impacts will not meet the criteria (Hupacasath at paras 89, 106; Rio
Tinto at para 46).
[185] In this case, the evidence adduced by the Innu of Ekuanitshit does
not show the existence of adverse impacts that the project to reconstruct the
Mingan wharf could have on the Aboriginal rights claimed by the Innu, and, even
less so, that those impacts are significant and not speculative. Indeed, the
record shows that the Innu of Ekuanitshit merely mentioned the words [Translation] "adverse impacts" in their submissions, but did not establish, by means of evidence
on the record or in their discussions with the federal ministers, the existence
of concrete and real adverse impacts on their traditional rights attributable
to the project to reconstruct the Mingan wharf. In addition, the Innu of
Ekuanitshit did not demonstrate the existence of the causal link required
between the project to reconstruct the wharf and any potential adverse impacts
on their Aboriginal rights or titles claimed.
[186] Chief Piétacho did not specify anywhere in his affidavit what [Translation] "impacts" the elements of the project to reconstruct the Mingan wharf are
likely to have on the Aboriginal rights he is claiming. Indeed, the only
adverse impacts mentioned by the Innu of Ekuanitshit are the loss of the
economic opportunity to take part in the project to reconstruct the wharf
caused by the decision of the MFO and MPWGS to issue the notice of public bid
solicitation and to override the application of the PSAB. That is not an
adverse impact related to an Aboriginal right or title.
[187] To reiterate, this does not mean that the Innu of Ekuanitshit had no
legitimate concerns to argue with respect to their place in the process of
awarding the contract for the reconstruction of the Mingan wharf or in the
context of the federal ministers’ decision on the application of the PSAB.
However, that is not the type of adverse impact and causal link that gives rise
to a general duty to consult and accommodate claimed by the Innu of Ekuanitshit
and recognized by the courts.
(4)
Conclusion
[188]
The Court therefore finds that the circumstances
of the contract for the reconstruction of the Mingan wharf did not give rise to
a duty to consult or accommodate within the meaning of Haida, over and above
the federal ministers’ obligations under the PSAB and the Treasury Board
directives. Neither the existence of Aboriginal rights or titles claimed nor
the adverse impacts that the reconstruction project could have on those rights
and titles were established by the Innu of Ekuanitshit. Accordingly, there is
no need to determine whether the federal ministers have met a duty to consult
and accommodate or whether their consultation was adequate in this case.
[189] That said, the Court notes that the federal ministers have
acknowledged that the reconstruction of the wharf triggered a certain
obligation to consult the Innu of Ekuanitshit on environmental matters, on the
project’s effects on them as an Aboriginal people, in accordance with paragraph
5(1)(c) of the CEAA. Moreover, SNC led a consultation regarding this as
part of the CEAA, in which the Innu of Ekuanitshit took part. Nothing indicates
or suggests that that consultation regarding the concerns about the
environmental effects of the project to reconstruct the wharf was not adequate.
V.
Conclusion
[190] For the reasons above, the Court is of the view that the federal
ministers’ decision to override the PSAB was unreasonable in the circumstances.
The conclusion of the MFO and MPWGS in this regard does not have sufficient
merit to be transparent and intelligible, and it does not fall within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law. Accordingly, the Court will grant a declaration to that effect.
However, the Court is of the view that, in this case, there was no duty to
consult and accommodate the Innu of Ekuanitshit under the case law developed
since Haida.
[191] The Innu of Ekuanitshit are claiming the costs of the application
regardless of the outcome of the case and citing paragraph 400(3)(h)
regarding matters of public interest. According to this rule, the Court may
consider “whether the public interest in having the
proceeding litigated justifies a particular award of costs”. Harris v
Canada, [2002] 2 FCR 484, states the criteria to be considered for awarding
costs in such a situation. According to those criteria, a party would be able
to use that provision when: (i) the proceeding involves issues the importance
of which extends beyond the immediate interests of the parties involved; (ii)
the person has no personal, proprietary or pecuniary interest in the outcome of
the proceeding, or, if he or she has an interest, it clearly does not justify
the proceeding economically; (iii) the issues have not been previously determined
by a court in a proceeding against the same defendant; (iv) the defendant has a
clearly superior capacity to bear the costs of the proceeding; and (v) the
plaintiff has not engaged in vexatious, frivolous or abusive conduct. The Court
acknowledges that the criteria are met in this application.
[192] Given the general importance of the issues related to the
implementation of the PSAB and the scope of the duty to consult and
accommodate, and given the success of the Innu of Ekuanitshit in the main
purpose of their application, the Court will order that the federal ministers
jointly pay two-thirds of the applicants’ costs, even though only part of the
application is allowed.